Alexandre Yakovlevich Tseitline v Leonid Victorovich Mikhelson and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Phillips |
| Judgment Date | 28 October 2015 |
| Neutral Citation | [2015] EWHC 3065 (Comm) |
| Docket Number | Case No: 2014 Folio 721 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 28 October 2015 |
[2015] EWHC 3065 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Mr Justice Phillips
Case No: 2014 Folio 721
David Lord QC and James Weale (instructed by Dechert LLP) for the Claimant
Alain Choo-Choy QC and Andrew Scott (instructed by Baker & McKenzie) for the First Defendant
Hearing date: 18 May 2015
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
On 4 October 2014 process servers acting on behalf of the claimant ("Mr Tseitline") purported to effect personal service of these proceedings on the first defendant ("Mr Mikhelson"). They first attempted to do so as Mr Mikhelson arrived at the Whitechapel Gallery ("the Gallery") in London, accompanied by his daughter, Victoria Mikhelson. Further attempts took place after the process servers had followed Mr Mikhelson into the Gallery.
By Application Notice dated 17 November 2014 Mr Mikhelson challenges the jurisdiction of the court. The first ground of challenge is that he has not been served with the proceedings. The second and alternative ground is that, if he has been served, England is not the appropriate forum for the determination of the claim, Mr Mikhelson contending that Russia is clearly and distinctly more appropriate. By cross-application dated 1 December 2014 Mr Tseitline seeks an order that, if the attempts at personal service of proceedings on Mr Mikhelson were ineffective, any errors be waived or rectified or the attempts be constituted good service or service otherwise be dispensed with.
On 18 December 2014 Burton J directed that the issues relating to service of the proceedings be determined prior to the forum issue. This is my judgment on the question of whether Mr Mikelson was validly served or should otherwise be deemed to have been served.
The claim
Mr Tseitline is a businessman resident in Israel. Mr Mikhelson understands him to be a national of both Russia and Israel.
Mr Mikhelson is a businessman resident in Russia and it appears to be common ground that he is a Russian national. He asserts that, apart from a few words, he does not speak or understand English. Mr Tseitline did not seriously challenge that assertion.
Mr Tseitline's claim in the proceedings is in respect of alleged breaches of an agreement he made with Mr Mikhelson in 2007 relating to the commercial development of real estate in St Petersburg owned by a company in which Mr Tseitline held a controlling stake. The claim form was issued on 13 June 2014 and amended on 8 September 2014. It is not necessary, for the present purpose of determining issues as to service, to consider the claim in any greater detail.
The evidence
Mr Mikhelson's uncontested evidence is that he rarely travels to the UK, but was in London from 3 to 5 October 2014, having arrived on a private chartered flight from Moscow at about 4pm on Friday 3 October. The main purpose of his visit was to attend a private reception at the Gallery the following evening to mark the opening of an exhibition organised by the V-A-C foundation, of which Mr Mikhelson is the founder and president. The foundation is named after his daughter Victoria, who had arrived in London earlier on 3 October from New York, where she lives and studies Art History. Victoria Mikhelson is a fluent English speaker, having lived in London as well as New York. Mr Mikhelson spent Friday evening with his daughter, Teresa Mavica (the director of the V-A-C foundation), various acquaintances and his interpreter, Ekaterina Burgess.
On Saturday 4 October Mr Mikhelson and his daughter were chauffeur-driven to the Gallery, arriving outside at about 6.20pm. Awaiting their arrival were the two process servers, Paul Austin and Darren Harber, each in possession of an envelope, marked only with the printed name of Mr Tseitline's solicitors. The envelope contained a sealed copy of the amended claim form (with certified Russian translation) and the response pack, together with a covering letter in English and Russian. Mr Harber also held in his hand a covert camera, the size of a key fob, with which he recorded what he could of the process which then ensued of attempting to effect personal service on Mr Mikhelson. At the invitation of the parties I have viewed Mr Harber's video recording and considered the parties' respective attempts to transcribe what can be heard on that recording. Mr Austin, Mr Harber and Ms Burgess have each made one witness statement and Mr Mikhelson, Victoria Mikhelson and Teresa Mavica have each made two witness statements giving their version of events.
The events which occurred outside the Gallery are relatively clear from the video recording. They can be summarised as follows:
i) After Mr Mikhelson had alighted from the rear driver's side door and was standing in the road by the boot of car, he was approached by Mr Austin, who held out his envelope, saying " I'm here to serve you papers as part of a High Court, a High Court claim. We're here to serve you [the] claim papers". Mr Harber filmed the exchange from the other side of the car.
ii) As Mr Austin spoke, Mr Mikhelson took hold of one side of the envelope in his right hand, whilst Mr Austin retained his hold of the other side of the envelope.
iii) At the same time Victoria Mikhelson walked round the back of the car to join Mr Mikhelson and Mr Austin. Mr Mikhelson looked at his daughter and said " A chto eto takoe?" (translation: What is this?). No response from Victoria Mikhelson is audible, but Mr Mikhelson loosened his grip on the envelope so that he held it between his index and middle fingers of his right hand, and then he released the envelope altogether, leaving Mr Austin holding it alone. At no point during this exchange did Mr Austin let go of the envelope.
iv) Mr Mikhelson and his daughter then walked towards an entrance to the Gallery, where they were directed to another entrance. As they walked, Mr Austin remained beside Mr Mikhelson, stating several times that he was there to serve papers " as part of a High Court" and that Mr Mikhelson needed to take them. On three occasions Mr Mikhelson said to Mr Austin, in English, " Speak only Russian".
v) As Mr Mikhelson and his daughter walked past the entrance to Whitecapel underground station, en route to the second entrance to the Gallery, Mr Austin said to Victoria Mikhelson " Can [or Could] you give these to your father, he needs to take these. These are part of a High Court, the High Court. You need to give these to your father". Mr Mikhelson said to his daughter " Ne slushay ego" (translation: " Don't listen to him"). As they entered the Gallery, Mr Austin said " You need to take these. You've now been served" [possibly adding with High Court papers].
Mr Austin and Mr Harber accompanied Mr Mikhelson and his daughter as they entered the Gallery, walking through a short passageway to the foyer. At this point the video recording became less steady as Mr Harber took out his envelope containing the documents for service. Further, given Mr Harber's proximity to a number of other people and his own close involvement as described below, he was unable to capture all of the relevant events in the recording. However, the following is apparent:
i) Mr Mikhelson and his daughter joined Teresa Mavica and Ekaterina Burgess, who had been waiting for them in the Gallery. They spoke in Russian, although their words were not caught on the recording. Mr Austin stood next to them. Ms Mavica accepts that she heard Mr Austin say that he was there to serve papers: Mr Austin states that he referred to serving High Court papers.
ii) Mr Mikhelson then walked away from the group and encountered Mr Harber at very close quarters, telling him (in Russian) to "go away". Although not captured by the recording, it is common ground that at this point Mr Harber attempted to serve the envelope on Mr Mikhelson. Mr Harber states that he placed it " in between the crook of [Mr Mikhelson's] arm and his body where it lodged after I let it go". Mr Austin states that Mr Harber " thrust the envelope … into Mr Mikhelson's chest/arms … As Mr Mikhelson walked away from us he threw the envelope … to the floor." Mr Mikhelson, in his second witness statement, says that Mr Harber " tried to shove the envelope behind my lapel, but it fell to the floor". Ms Mavica states, in her first statement, that Mr Harber " tried to place an envelope … against Mr Mikhelson's chest … Mr Mikhelson … opened his arms so that the envelope fell on the floor".
iii) Although not apparent from the video, it is clear that Mr Mikhelson then walked through a door from the foyer into the ground floor of the Gallery. Mr Austin states that he threw his envelope after Mr Mikhelson, but that it hit the door as it closed and so Mr Austin picked it up.
iv) Meanwhile Mr Harber picked up the envelope he had attempted to serve on Mr Mikhelson and lodged it between Victoria Mikhelson's back and her shoulder bag, in which position it can be seen on the video. That envelope fell to the floor, where it was picked up by a woman in a white jacket, but something was said or indicated to her, causing her to place it back on the floor. Mr Austin then picked up that envelope as well. He and Mr Harber then left the Gallery.
Mr Mikhelson's evidence is that, as he does not speak English and as nobody translated what was being said to him, at no point did he know or even suspect that 'the ambush' by Mr...
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