Case number: BL-2024-001074 - [2025] EWHC 2954 (Ch)

The question would have been whether substituted service on Mr. Hill through Mrs.. Hill was effective on 25 January 2025 during the period when time for service had been extended. In this regard, I have a witness statement from Ms. Schutska and a witness statement from Mrs.. Hill. I also have (with leave of the court) expert evidence from two Floridian lawyers, Mr. Milne and Mr. Collins. There has been no cross examination of those experts, although there has been trenchant criticisms of both by counsel. I have regarded their role as assisting me in understanding how a Florida Court would be likely to approach the question of whether valid substituted service had taken place.

The requirements of service are set out in Florida Statute §48.031(1)(a) which provides: “Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents . . .”.[my emphasis]

Ms. Schutska in her witness statement gave the following evidence:-

Mrs. Hill’s evidence does not dispute what happened on 22 January. She also agrees with Ms. Schutska that they spoke through the intercom on 25 January, although she denies yelling saying instead she spoke up to make herself heard. She denies that Ms. Schutska said that she was leaving documents for Mr. Hill and that he was served through her.

Ultimately the question boiled down to whether Ms. Schutska had informed Mrs.. Hill of the contents of the documents. Mr. Collings rightly conceded that one of his arguments (that leaving the documents at the door was insufficient) could not stand in light of authority relied on by Mr. Milne which his expert Mr. Collins appears to have missed.

Turning to the expert evidence, that was subject to criticism on both sides. Dealing first of all with Mr. Collins on behalf of Mr. Hill, his report was not compliant with CPR 35 although I understand some of those deficiencies have been rectified after the report was filed, and although it was not seriously urged upon me that I should disregard the report, the report has to be approached cautiously. Further it is clear that Mr. Collins had not taken into account Florida authority to the effect that leaving documents at the property rather than handing them to a resident could constitute substituted service.

Mr. McCourt Fritz urged me notwithstanding this to rely on Mr. Collins’ assertion that in determining whether service of process is valid, the court examines the return of service and if the return of service is facially valid, the burden then shifts to the defendant to rebut it by clear and convincing evidence: (Kemmerer v. Klass Assocs., 108 So. 3d 672 (Fla. 2d DCA 2013). The return of service in this case reads: I told her that because I can confirm that I was speaking with Ms. Hill, I am leaving the documents at the door for Mr. Hill. She continued to yell, and I left the documents at the door, told her that Mr. Hill was served through her.”

Mr. Milne does not rely on this and it seems to me that the return does not prima facie deal with the point of whether Mrs.. Hill was informed of the contents of the documents.

There are undoubtedly difficult questions in this case as to whether the fact that Mrs. Hill, because of her interactions with Ms. Schutska on 22 January, knew that she was a process server and that she had left documents with her which she also wanted to serve on her husband is enough.

Mr. Milne’s approach is to say that the Florida Court would regard as the overarching objective of the service statute “to give proper notice to the defendant in the case that he is answerable to the claim of plaintiff. . . . The major purpose of the constitutional provision which guarantees ‘due process’ is to make sure that when a person is sued, he has notice of the suit and an opportunity to defend.”

He also points to the fact that the courts have interpreted the Statute in a rather more flexible way when there is evidence that service is being avoided. Mrs. Hill refusing to accept her husband’s papers on 22 January, asking Ms. Schutska to come back on 25 January but then not opening the door and refusing service seem to me to demonstrate an attempt to avoid service.

It is clear from one of the authorities appended to Mr. Collins’ report (Mauro) that the bar for explaining the contents is relatively low. How low that bar might be is not clear. However, Mr. Milne expresses the view that “the statute states that the recipient must have been informed of the contents of the papers. This was done on January 22 and needed no reiteration on January 25.” Ms. Schutska of course told Mrs. Hill on 22 January that she was serving process in the matter and that she was also serving Casa Marisol and Mr. Hill.

Mr. Milne is of the view that the Florida Court would find that service had been effected in this case. I accept that the issue is not a straightforward one. There appears to be no Floridian authority which is on all fours but I am entitled to prefer the view of one of the experts over the other and in my opinion the report of Mr. Milne is compliant and can be relied on as expressing an opinion on what the court in Florida would be likely to do in light of the evidence.

I am therefore of the view that substituted service was effected on Mr. Hill on 25 January 2025.