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Diriye v Bojaj [2020] EWCA Civ 1400: ‘Signed For’ deliveries and deemed service

11.11.20

by Stuart Sanders

Summary

In Diriye v Bojaj [2020] EWCA Civ 1400, the Court of Appeal handed down an important judgment clarifying the scope of the deemed service provisions in CPR 6.26 in the context of signed for deliveries. The Court held that a ‘Signed For 1st Class’ delivery would still be deemed served ‘on the second day after it was posted’ in accordance with CPR 6.26, regardless of the date on which it was actually signed for and received.

 

The facts

C was involved in a road traffic accident with D1 (D2 being D1’s insurer). C issued proceedings in relation to that accident, claiming a modest amount for a whiplash injury and a significantly larger amount for credit hire costs in respect of the hire of  replacement vehicle. Such costs are recoverable by a claimant who is impecunious and therefore forced to use a credit hire agency by virtue of being unable to pay the lower rates of ordinary car hire (see Lagden v O’Connor [2014] 1 AC 1067).

C had not provided details of such alleged impecuniosity in his Particulars of Claim and the Defendants joined issue on this point in their Defence, however C continued to fail to plead or otherwise provide details of his impecuniosity. Consequently, the judge made an Unless Order compelling C to serve a Reply dealing with this issue in more detail by 4pm on 4 Aril 2018.

C provided a Reply which was posted (according to the Certificate of Posting) at 5.36pm on 4 April 2018. The Reply was sent to the Defendants using the Royal Mail’s ‘Signed For 1st Class’ service. This service aims to deliver items the next working day in line with its ordinary 1st class service, but will only make such delivery once a signature or similar proof of delivery has been gained from the addressee of their representative. In the event, the Reply was not in fact signed for and received until 9 April.

It was accepted by C that he had served the Reply late and he therefore made a relief from sanctions application (albeit almost two months later). One issue in that relief application was the extent of the lateness – if C could rely on the deemed service provisions applicable to “First class post (or other service which provides for delivery on the next business day),” then the Reply would have been deemed served on “the second day after it was posted,” namely 6 April, whereas if he were tied to the date of actual receipt, service would have been effected on 9 April.

 

The decisions below

DDJ Goodman held that the requirement of a signature before delivery in “Signed For 1st Class” deliveries meant that such delivery was not the equivalent of 1st class post and fell outside the deemed service provisions. She further held that C should not be given relief from sanctions on the basis that his Reply did not comply substantively with the terms of the Unless Order in any event, that he had provided no explanation for the breach and that he had delayed in making the application.

HHJ Lethem upheld DDJ Goodman’s conclusion, and the case reached the Court of Appeal as a second appeal.

 

The Court of Appeal Decision

C argued that the provision of a signature “rectified the problems” with First class post in relation to proving actual delivery and therefore there was no need to apply the deemed service provisions to it. The Court of Appeal (Coulson LJ, with whom Nicola Davies and Rose LJJ agreed) rejected this analysis and found that the judges below had been wrong to find that the deemed service provisions did not apply for the following reasons (at [34]-[42]):

  1. As is apparent from the way it is described, “Signed For 1st Class” is simply a species of First class post, and therefore falls squarely within the CPR 6.26 provisions;
  2. Even if this was not correct, Signed For 1st Class would still be another service providing for delivery on the next business day;
  3. It would be wrong to distinguish Signed For 1st Class on the basis of a signature, since the entire basis and rationale of the deemed service regime is to render actual service irrelevant and provide certainty irrespective of actual service (see Godwin v Swindon Borough Council [2001] EWCA Civ 1478 and Anderton v Clwyd County Council (No 2) [2002] EWCA Civ 933);
  4. Consequently, the deemed service provisions render non-existent the supposed ‘problems’ with First class post relied on by C;
  5. There is no concept of a document being ‘signed for’ within the deemed service provisions or recognised by the CPR – there is only a distinction between documents sent via post or other delivery service, and delivery by personally delivering a document to or leaving it at a place;
  6. Further, it would “make no sense” for solicitors who chose to use signed for delivery to be placed in a worse position than simply using first class post, by being unable to rely on the certainty of the deeming provisions;
  7. Finally, excluding such services from the deemed service provision could allow an unscrupulous recipient to evade service by refusing to sign for a document.

The Court of Appeal nevertheless upheld the decision to refuse C’s application for relief from sanctions on the basis that, inter alia, the breach was the breach of an Unless Order, beyond the delay there was a breach of the substance of that Order, there was no good reason for those breaches, C had delayed for two months in making the relief application, and C had still failed to engage fully with the impecuniosity issue.

 

Conclusion

This decision is a welcome one for solicitors who use signed for delivery services, since it confirms that the use of such services will simply give them comfort as to the actual delivery and will not deprive their clients of the benefit of the deemed service provisions in CPR 6.26.

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