Practice and procedure – Service – Relief from sanctions – Appellant failing to comply with unless order after serving documents using Royal Mail “signed for first class” service – Deputy district judge refusing to grant relief from sanctions – Appellant appealing – Whether “signed for first class” service within deemed service provisions in CPR rule 6.26 – Whether appropriate to grant relief from sanctions – Appeal dismissed
The appellant brought proceedings claiming damages and sought to rely on certain evidence to support his claim. The court ordered that the appellant would be debarred from relying on that evidence unless his reply was served by a specified date.
The appellant purported to effect service by posting his response at 17.36 on 4 April 2018 (the deadline day) using the “signed for first class” service in the Royal Mail’s United Kingdom Post Scheme, which required a signature or proof of delivery before an item was delivered on the next business day. The document was not signed for, and therefore not received by the respondents’ solicitors until 9 April 2018. The appellant appeared to accept that he was in breach of the unless order and had to apply for relief from sanctions. However, that application was not filed until 31 May 2018 and issued on 5 June 2018.
The deputy district judge held that service effected by “signed for first class” post was not the equivalent of first class post, because the mechanism required that the document be signed for before it was delivered, and was therefore outwith the deemed service provisions of CPR rule 6.26. Accordingly, service did not occur until 9 April.
Applying the three-stage test in Denton v T H White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3926, the judge found that the breach of the unless order was serious and there was no explanation for it. In the circumstances, the judge found that the delay in applying for relief from sanctions meant that the application had not been made promptly and it was not appropriate to grant relief from sanctions. On appeal, a circuit judge upheld that decision.
The issue on the second appeal was whether the “signed for first class” service was covered by the description “first class post (or other service which provides for delivery on the next business day)” in the deemed service provisions of rule 6.26. A further question was whether the district judge was entitled to exercise her discretion against granting relief from sanctions under CPR rule 3.9.
Held: The appeal was dismissed.
(1) Without a copy of the Royal Mail scheme before them, both judges had reached the incorrect conclusion that the “signed for first class” service was not either first class post or another “service which provides for delivery on the next business day” pursuant to rule 6.26. The Royal Mail itself described the “signed for first class” service as first class post: it was simply a version which was signed for. In every other way, particularly in respect of delivery, both services were described using the same words. It would be difficult to suggest that “signed for first class” post was not simply a species of first class post, and therefore to be treated as such by rule 6.26.
Even if it was not first class post as such, it was “another service providing delivery on the next business day”. That was the delivery date which Royal Mail aimed to deliver both first class post and “signed for first class” post. Therefore, both were services which were “providing delivery on the next business day”. Any attempted distinction between the two first class services based on actual delivery would be wrong in principle and ignored the concept of deemed service in rule 6.26: Godwin v Swindon Borough Council [2001] EWCA Civ 1478 and Anderton v Clwyd County Council [2002] EWCA Civ 933 followed.
Service deemed to have occurred on the second business day after posting avoided the need for the court to have to explore when the document was in fact served/delivered/signed for/acknowledged. The deeming provision was there to provide certainty, and to make the actual circumstances of delivery or receipt irrelevant.
(2) Solicitors serving documents needed to know that, when they put something in the first class post, the deemed service provisions of the CPR had been triggered. It made no sense to suggest that, by using the “signed for first class” service, a solicitor was in a worse position than if he or she had used ordinary first class post; that, although they had posted the document in time, they were obliged constantly to check with the intended recipient that it had actually been received and signed for within the time limit prescribed by the rules or the court’s order.
Any other result would mean that an unscrupulous intended recipient could evade service altogether, simply by refusing to sign for the document in question. Solicitors used the “signed for first class” service presumably for added protection, because they obtained a record of receipt. It would be entirely counterproductive to conclude that the use of that service had the opposite effect and could allow an intended recipient to avoid service altogether.
(3) Therefore, the “signed for first class” service was caught by rule 6.26, either because it was included within the rubric “first class service” or because it was “another service which provides for delivery on the next business day”. Either way, the same deemed service provision set out in rule 6.26 applied to the service of the reply in this case. The reply was deemed to have been served on the second day after it was posted, namely 6 April 2018. In those circumstances, the appellant failed to comply with the mechanics of the unless order, albeit the default was two days, rather than the five days identified by both judges. Whether that made any difference to the result depended on a consideration of the three-stage test in Denton v White.
(4) In the present case, given the background to the making of the order, and the fact that it was an unless order with which the appellant failed to comply, the breach was serious and significant and there were no good reasons for the default. Further, the delay in making the application militated strongly against granting relief from sanctions. The deputy district judge had applied to three-stage test correctly and had been right to conclude that there was no basis for the grant of relief from sanctions and exercised her discretion correctly.
David Peter (instructed by Lincoln Harford Solicitors LLP) appeared for the appellant; David Fardy (instructed by DWF Law LLP) appeared for the respondents.
Eileen O’Grady, barrister
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