Deemed Date of Service

Anderton v Clwyd County Council (QBD RCJ 25 July 2001 unreported)

Those who thought Brown J’s judgment was the light at the end of the tunnel were shaken to discover that the light was in fact McCombe J coming from the opposite direction. The claim form was issued on 5 July 2000, very shortly before the expiry of the primary limitation period. Pursuant to CPR rule 7.5 the time for service of the claim form expired on or about 5 November 2000. The claim form was served by a letter dated 3 November, which, by virtue of rule 6.7 would be deemed to have been served on the second day after it was posted, namely 5 November. The letter was not in fact received until 7 November. Did the fact of service occurring on a known date override the deeming provisions of rule 6.7(1)? The equivalent rule in the former Rules of the Supreme Court included the words ‘unless the contrary is shown’ but although the omission of those words from the present rules was relevant it was not conclusive. It would be nonsensical to ignore the fact of the actual date of receipt or that the defendant never received the claim form at all because it was delivered to the wrong address. Accordingly the presumption remained a rebuttable one and was indeed rebutted by evidence that the letter was not in fact received until 7 November. It was therefore out of time. In any event the reference to rule 2.8 in rule 6.7(1) was to indicate that Saturdays and Sundays etc should be excluded from calculations of all kinds of deemed service, save those where express provision is otherwise made. 4 and 5 November 2000 were a Saturday and Sunday and should therefore be excluded when calculating the deemed date of service and therefore this too was 7 November. The judge then proceeded to consider an application to dispense with service under CPR rule 6.9 based on the decision in Infantino (above). He found extreme difficulties in reconciling this decision with what he described as the ‘powerful dicta’ in Elmes (above) and the rationale behind the decisions of the Court of Appeal in Vinos and Kaur (both above). However, he was constrained to follow the Infantino decision unless satisfied that it was plainly wrong, Infantino was the only direct authority on Rule 6.9 and therefore McCombe J felt constrained to follow it and to hold that he did have a discretion to dispense with service. However, there was nothing to suggest in the present case that circumstances existed such as those which persuaded Brown J to exercise his discretion to dispense with service in the Infantino case. Indeed no evidence addressing any such points had been adduced before him and accordingly he refused to dispense with service of the claim form.