Inner House reverses Sheriff Appeal Court decision on proof requirement in postal service of Simple Procedure claim

About this case:

• Citation:
  [2023] CSIH 43
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Carloway

Cabot Financial UK Ltd, which sought to recover an assigned debt from respondent Ryan Bell, challenged a sheriff’s decision, upheld by the Sheriff Appeal Court, that the action was not validly served in the absence of evidence of delivery in the form of a confirmation from Royal Mail Track and Trace.

The appeal was heard by the Lord President, Lord Carloway, together with Lord Pentland and Lord Boyd of Duncansby. Davie KC appeared for the appellants. No appearance was made by the respondent.

Presumption of delivery

The appellants sought payment of a credit card debt of £4,105.42 from the respondent, and raised a Simple Procedure claim against him in Falkirk Sheriff Court for that purpose. The appellants commenced service of the claim on the respondent at his home address about half a mile from the court. Service was by a next-day postal service which recorded delivery, tendered to Kirkintilloch Post Office on 23 July 2021.

The appellants lodged a Confirmation of Formal Service (Form 6C) with the court. The Post Office acknowledgement of receipt of the envelope containing the Claim was attached to it. This included a tracking number, but confirmation of delivery was not lodged. No response to the claim was filed by the respondent and on 9 September 2021 an application was made for decree ordering payment of the debt.

On 26 November, the summary sheriff ordered parties to attend a hearing on 25 January 2022, although it appeared no steps were taken to intimate this to the respondent. The claim was dismissed on the basis that the presumption of postal delivery had become weaker over time, and in the absence of an easily obtainable proof of delivery from Royal Mail, the sheriff should not act as a rubber stamp for the service of postal claims.

For the appellant it was submitted that, in upholding the sheriff’s decision, the Sheriff Appeal Court had erred in interpreting the Simple Procedure Rules as requiring a record of delivery to prove service. The presumption arose as a result of the claimants having sent the Claim Form to the address of the respondent by recorded delivery post. The burden was then on the respondent to demonstrate that the Form had not been delivered.

Simple, not difficult

Delivering the opinion of the court, Lord Carloway said of the presumption of delivery: “Whatever its deficiencies in the modern era, and whether or not a server can ascertain the state of service by visiting the Royal Mail’s Track and Trace website, that is the system embodied in the law. If it is to be changed, for example by including a reference to a tracking system, that can only be achieved by an amendment to the Rules and possibly primary legislation.”

He continued: “The appellants’ law agent certified, by completing the prescribed Form 6C, that he had formally served the Claim Form. He produced the appropriate paperwork from Royal Mail, namely the Post Office receipt, dated and stamped 23 July 2021. He produced what evidence of delivery was available to him and thereby complied with Simple Procedure rule 18.2(4). Decree for payment ought to have followed in the absence of any information that service had failed.”

Referring to a case decided by another sheriff, Lord Carloway added: “The court approves Cabot Financial UK v Finnegan (2021) whereby ‘completion of the form 6C, together with proof of recorded delivery posting, creates a rebuttable presumption that formal service has been effected, without the need for a delivery receipt. That presumption can be rebutted by the return of the document to the sheriff clerk’.”

He concluded: “Simple Procedure is supposed to be simple and not difficult. Completion of formal service does not depend upon evidence from a third party. There is a deadline for lodging the Form 6C, of one week after service has been effected. Unless the party has information that service has failed, he does not require to search for it. He does not need to provide evidence of anything more than that he has served the Claim by posting it. In line with the long-established presumption, proof of sending is proof of delivery.”

The appeal was therefore allowed, and the cause remitted to the sheriff to proceed as accords.