In Diriye v Bojaj  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.
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  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 -):
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.
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.