Does service of a bankruptcy petition need the personal touch? (Morby v Gate Gourmet Luxembourg IV Sarl and another)

Does service of a bankruptcy petition need the personal touch? (Morby v Gate Gourmet Luxembourg IV Sarl and another)

What are the requirements as to service of a bankruptcy petition? Does the petition have to physically touch the debtor to constitute personal service? Steven Thompson QC, a barrister at XXIV Old Buildings, who represented the respondent, reviews the decision in the Morby v Gate Gourmet appeal.

Original news

Morby v Gate Gourmet Luxembourg IV Sarl and another [2016] EWHC 74 (Ch), [2016] All ER (D) 157 (Jan)

The Chancery Division, in dismissing the claimant's appeal against the grant of a bankruptcy order, held, among other things, that the registrar had been entitled to find that the claimant had been personally served with the petition of bankruptcy, as required by rule 6.14 of the Insolvency Rules 1986, SI 1986/1925 (IR 1986) and as articulated in authority, notwithstanding that the process server had, in the presence of the claimant, handed it to a third party who had accompanied the claimant and who had thrown it in the bin. The claimant had been aware that the document was a petition seeking a bankruptcy order against him and the registrar had not made erroneous or unjustified findings of fact.

What was the background to the appeal briefly?

Mr Morby was adjudged bankrupt. He appealed on the basis that he had not been personally served with the petition—his evidence was that the process server passed the petition to a friend of Mr Morby, who read it, attempted to return it to the process server and then put it in the bin. At no point in time did the petition come into contact with Mr Morby. Mr Morby had invited his friend to an appointment specifically made with the process server for the purpose of being served with the petition and the two of them were together when the process server handed the petition to the friend.

The process server’s evidence was that he had personally handed the

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About the author:

Stephen qualified as a solicitor in 2005 and joined the Restructuring and Insolvency team at Lexis®PSL in September 2014 from Shoosmiths LLP, where he was a senior associate in the restructuring and insolvency team.

Primarily focused on contentious and advisory corporate and personal insolvency work, Stephen’s experience includes acting for office-holders on a wide range of issues, including appointments, investigations and the recovery and realisation of assets (including antecedent transaction claims), and for creditors in respect of the impact on them of the insolvency of debtors and counterparties.