Delivery of simple procedure claim must be evidenced

The Simple Procedure Rules require that where a claim form or other document is served by post, evidence of delivery must be attached to the confirmation of formal service lodged with the court for the presumption that the document has been received to apply, the Sheriff Appeal Court has ruled.

Sheriffs Principal Marysia Lewis, Craig Turnbull and Derek Pyle gave the decision in refusing an appeal by Cabot Financial (UK) Ltd against the decision of a summary sheriff to dismiss an action against Ryan Bell in the absence of a Royal Mail track and trace receipt, or other evidence of receipt, along with the execution of service.

In doing so the court overruled the decisions in Cabot Financial (UK) Ltd v Finnegan 2021 SLT (Sh Ct) 237 and Cabot Financial (UK) Ltd v Donnelly 2022 SLT (Sh Ct) 147, which held that while a certificate might be lodged, there was no requirement to do so.

The pursuer argued that rule 18.2(4) did not require a claimant to lodge evidence that proceedings had been received: it only required lodging a confirmation of formal service, and “any evidence of delivery” – which did not specify any particular form of evidence, and evidence of posting amounted to evidence of delivery. If it was established that a document had been sent, it was (rebuttably) presumed to have been received within 48 hours after sending, by s 26(5) of the Interpretation and Legislative Reform (Scotland) Act 2010.

In the absence of appearance by the respondent, the court appointed an amicus curiae, who argued that the correct interpretation of the rule was that evidence of delivery required to be lodged.

Delivering the opinion of the court, Sheriff Principal Turnbull noted that the rules stipulated that the first attempt at service must be by “a next day postal service which records delivery”. It was significant that the confirmation of formal service specifically quoted this phrase as one of the options to check. The record of delivery was evidence of delivery. That evidence required to be attached to, and thus formed part of, the confirmation of formal service. A claimant could not circumvent the requirements of the rule by way of electing not to obtain the evidence of delivery; and absent evidence of delivery, the presumption in s 26(5) of the 2010 Act was not engaged.

It followed that the conclusions reached in Finnegan and Donnelly were erroneous.