Cabot Financial (UK) Ltd v Ryan Bell (2023 CSIH 43)
The recent decision of the Inner House of the Court of Session provides clarity on what is considered proof of service under the Simple Procedure Rules – leaving little room for uncertainty.
The case of Cabot Financial (UK) Ltd v Ryan Bell (2023 CSIH 43) was appealed to the Inner House of the Court of Session from the Sheriff Appeal Court. The case concerned whether decree in absence could be granted where there was a question of whether effective service had been achieved under the Simple Procedure rules, in absence of a Royal Mail track and trace confirmation slip being obtained.
Facts of the Case
The case concerned a credit card debt of £4,105, which the appellants - as assignees of the credit card company - sought to recover from the respondent. As per Rule 18.2 of the Simple Procedure rules, they served a formal Claim Form on the respondent in July 2021 and subsequently lodged a form 6C (Confirmation of Formal Service). With this form an acknowledgement of receipt of envelope – which had a tracking number - was attached.
There was no confirmation of delivery of the formal service via Royal Mail's track and trace attached, although it was accessible online. When the respondent did not answer the claim, the Appellant applied for a decree in absence in September of that year. Following this, a hearing was ordained by the summary Sheriff for January 2022. Subsequently, the claim was dismissed in April 2022. An unsuccessful application for recall of the dismissal was made, with the case dismissed once more in May 2022. The grounds for the Summary Sheriff's decision was that proof of delivery from the Royal Mail's track and trace system was easily obtained and ought to have been lodged. The Sheriff Appeal Court agreed, stating that record of delivery was evidence of delivery and as such, said record had to have been included with the Form 6C; something the Appellant's had omitted to do.
The Relevant Law
This was decided based on the Sheriff's interpretation of Rule 18.2 of the Act of Sederunt (Simple Procedure) 2016 (2016/200) – which has since been amended by the Act of Sederunt (Simple Procedure Amendment) (Miscellaneous) 2022/211 but was the contemporaneous law that the summary Sheriff and Appeal Sheriff had to apply.
The pre-amended Rule 18.2 stated:
"When these Rules require a document to be formally served, the first attempt must be by a next-day postal service which records delivery…after formally serving a document, a Confirmation of Formal Service form must be completed and any evidence of delivery attached to it."
However, there are two key assumptions which have become commonplace in Scots law which are also relevant to consider. Section 3 of the Citation Amendment (Scotland) Act 1882 ("the 1882 Act") affirms that proof of postage is sufficient in order to demonstrate legal service, unless proved otherwise by the recipient. More recently, Section 26 of the Interpretation and Legislative Reform (Scotland) Act 2010 ("the 2010 Act") introduced the presumption that a posted document is presumed to be received 48 hours after posting.
At first instance, the summary Sheriff noted that "any evidence" - as stated in the pre-amended rule 18.2 - referred to any evidence which would be easily accessible. The Sheriff considered accessing Royal Mail's track and trace website an easy task to do, so it should have been attached to the form. Citing Wallace v Keltbray Plant Ltd 2006 SLT 428, the summary Sheriff highlighted that a sheriff should be satisfied regarding service, and should not grant a decree if they are concerned. The Sheriff Appeal Court agreed with the summary Sheriff's judgement.
Appeal to the Inner House
Upon appeal to the Inner House, however, The Lord President, overturned the summary and appeal Sheriffs' decisions.
The pre-amended Rule 18.2 was not contradicted by either presumption arising from the 1883 Act (proof of postage constitutes proof of service) or the 2010 Act (a posted document is deemed to be served 48 hours after posting). All that was required under Rule 18.2 was that a next-day delivery service, which has the mechanism of recording delivery, be used and a Confirmation of Formal Service form be completed. The Appellants had done this.
Further, whilst not applicable to the present case, the amended Rule 18.2 now reads: "After formally serving a document, a Confirmation of Formal Service must be completed and any evidence of sending or, in the case of email, proof of receipt attached to it (for example, a postal receipt or a copy of an email acknowledgement). The Lord President acknowledged that this latter wording was added so to emphasise that the requirement is for proof of service, and not delivery.
The Lord President continued by acknowledging that whether or not the Royal Mail Track and Trace system can provide one with confirmation of delivery (which in practice is not always achievable), in absence of any explicit requirement within the Simple Procedure rules, it was not a requirement by law and indeed would only become one should the rules be amended to reflect this.
The Lord President provided a convenient summary on the principles of Simple Procedure and the effect this has on the rules for service: "Simple Procedure is supposed to be simple and not difficult. Completion of formal service does not depend upon evidence from a third party…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".
So, what does this mean for the future of formal services under Simple Procedure? Ultimately, it ensures that proof of postage, as opposed to proof of delivery, is the overriding requirement in demonstrating formal service in Simple Procedure cases. Whilst it is undoubtedly desirable to obtain proof of delivery if it is available, it shall not be a necessity in regards to demonstrating formal service.
However, whilst the Lord President's opinion will be binding on any first instance court and the Outer House of the Court of Session, it is unclear whether this opinion will influence Ordinary Cause or Summary Cause actions with the Lord President's opinion making specific reference to the simplistic nature of Simple Procedure as a factor.