Sheriff Appeal Court affirms decision that evidence of receipt of notice required for decree in unopposed simple procedure claim

About this case:

• Citation:
  [2022] SAC (Civ) 31
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Craig Turnbull

Appellant Cabot Financial (UK) Ltd sought decree of payment from respondent Ryan Bell, who did not respond to a notice of proceedings sent to him in July 2021. It argued that the summary sheriff at Falkirk Sheriff Court had erred in failing to grant decree.

The appeal was heard by Sheriffs Principal Marysia Lewis, Craig Turnbull, and Derek Pyle. Forrest, advocate, appeared for the appellant. The respondent made no appearance, and Blockley, advocate, appeared as an amicus curiae.

Presumption of delivery

The appellant was authorised by the court to raise proceedings against Mr Bell on 19 July 2021 and did so on 23 July of that year. No response was lodged by Mr Bell by the last day of 6 September. On 9 September, the appellant’s agents applied for decree, however the sheriff declined to grant decree in the absence of a Royal Mail Track & Trace receipt or other evidence of receipt.

It was the sheriff’s determination that such evidence was required where there had been postal service in a simple procedure action, and accordingly he dismissed the action. He interpreted Rule 18.2(4) of the Simple Procedure Rules 2016, which states that a Confirmation of Formal Service must be completed after formally serving a document and any evidence of delivery attached to it, as meaning that evidence that proceedings had been received required to be lodged with the court.

In its submissions the appellant argued that the presumption of delivery was applicable, and the correct interpretation of the rule did not require a claimant to lodge evidence of receipt. The summary sheriff erred in concluding that there was an obligation on a claimant to lodge evidence which is reasonably accessible. If any evidence of delivery was required, evidence of posting, in the form of a receipt stamped by the Post Office, amounted to the same thing.

For the amicus curiae it was submitted that the correct interpretation of the rule was that evidence of delivery required to be lodged, the operative word being “must”. In cases where there were questions about the validity of service and a party had not entered process, the sheriff was entitled to seek evidence of delivery so that he might be satisfied that service had been effected.

Circumvent the requirements

Sheriff Principal Turnbull, delivering the opinion of the court, explained: “In the present case, the appellant’s solicitor has certified that service was effected by a next-day postal service which records delivery. Whilst nothing turns on this for the purpose of the present case, the use of the word “any” in rule 18.2(4) reflects the fact that there will not be separate evidence of delivery in certain cases. If service by post has not worked, a sheriff officer may formally serve a document in one of the ways set out in rule 18.3(1).”

He continued: “The appellant’s solicitor certified that service of the Claim Form (and associated forms) had been effected by a next-day postal service which recorded delivery and yet did not to provide the evidence of delivery, contrary to the requirements of rule 18.2(4). Where service is effected by a next-day postal service which records delivery, that record is evidence of delivery. That evidence of delivery requires to be attached to, and thus forms part of, the Confirmation of Formal Service, in accordance with rule 18.2(4). The Confirmation of Formal Service (including the evidence of delivery) must be lodged with the sheriff court.”

Noting that sheriffs in previous actions raised by the appellant had concluded that such evidence was not required, the Sheriff Principal said: “A claimant cannot circumvent the requirements of the rule by way of electing not to obtain the evidence of delivery. Absent evidence of delivery, the presumption in section 26(5) of the 2010 Act is not engaged.”

He concluded: “It follows that the conclusion reached on this issue by the sheriff in Cabot Financial v Finnegan (2021) was erroneous. The question considered by the sheriff in Cabot Financial v Donnelly (2021) was somewhat different. However, the conclusion he reached was the same and was also erroneous.”

The Sheriff Appeal Court therefore affirmed the summary sheriff’s interpretation of the 2016 Rules and refused the appeal.