The serving of winding up petitions at the registered office of a debtor company is a relatively simple affair when you compare it to some of the unsavory tasks that a process server might be assigned.
However, with many companies having their registered offices at an accountants practice, serviced office or other shared office space, just what is the correct thing to do when there are no directors nor employees, nor anyone authorised to accept service. I know there are a few quirks, you can pin it to the front door or post it through a letterbox, but definitely not slide it under a non transparent door.
Is it ok to pass the papers to the friendly receptionist whom is happy to take the documents and pass them on, yet she is not an employee of the debtor company nor states that she is authorised to accept service?
I have to confess I have done so myself, I knew that I could just leave the petition on the reception desk but it seemed wrong to ignore the receptionists outstretched hand and smiling face and then rudely place it on her desk just out of her reach.
The Insolvency rules provides the following guidance in Rule 4.8
Service of the petition at the registered office may be effected in any of the following ways—
(a) it may be handed to a person who there and then acknowledges himself to be, or to the best of the server’s knowledge, information and belief is, a director or other officer, or employee, of the company; or
(b) it may be handed to a person who there and then acknowledges himself to be authorised to accept service of documents on the company’s behalf; or
(c) in the absence of any such person as is mentioned in sub-paragraph (a) or (b), it may be deposited at or about the registered office in such a way that it is likely to come to the notice of a person attending at the office.
Does it make a difference whether I give the receptionist the papers or just place them on the desk? Well yes, it does. We recently became aware of a challenge to this scenario, I will try and explain the reasoning behind the challenge.
In passing the papers to the receptionist, the process server has not met the criteria of (a) nor (b) in the above rules. I had previously reasoned that in my passing of the papers to the receptionist I had met the criteria of (c). What other way or method would prove more successful in bringing the petition ‘to the notice of a person attending’ the office other than putting it in a person’s hand I asked myself?
The legal guidance book ‘French on Applications to Wind Up Companies’ paragraph 3.13 provides the following guidance.
‘Handing the petition, at the registered office, to an individual, who is not a director, officer or employee of the company is not valid service (28)’
28 – Sterling Hay Corporate Risks Limited v Wasu (2003) EWHC748 (Ch)
Whilst I may not personally agree with the basis of the decision by Mr. Justice Lloyd nor understand why the decision in Sterling Hay Corporate Risks Limited v Wasu (2003) has become case law, the fact is, it has.
We for sure will be politely ignoring the receptionists outstretched hand in future and opting for the hard surface of the desk.