The Royal Mail service ‘Signed For 1st Class’ is first-class post or equivalent for the purposes of the deemed service provisions of the CPR, the Court of Appeal has ruled.
Overturning both a deputy district judge and circuit judge, the court said it made no sense that a service offering greater security could put solicitors in a worse position.
Diriye v Bojaj & Anor  EWCA Civ 1400 was a road traffic claim by a minicab driver in which most of the £15,700 claim was for credit hire, which was justified on the grounds of impecuniosity.
The claimant failed to comply with an unless order to serve a reply with evidence of this by 4pm on 4 April 2018 – it was posted at 5.36pm on 4 April using the ‘Signed For 1st Class’ service, which aims to deliver items on the next working day.
The reply was not signed for, and so not received by, the defendants’ solicitors until 9 April, but the claimant’s solicitors did not apply for relief from sanctions until 31 May.
The claimant conceded that, under CPR 6.26, the deemed service of first-class post or another service which provides for delivery on the next business day was the second day after it was posted, namely 6 April. Accordingly, there had still been a failure to comply with the unless order.
In any case, Deputy District Judge Goodman, sitting at Willesden County Court, held that service effected by ‘Signed For 1st Class’ post was not the equivalent of first-class post, because the document had to be signed for before it was delivered, and was therefore outwith the deemed service regime. She therefore found that service did not occur until 9 April.
She went on to refuse the application for relief, which meant the claimant was debarred from relying on the assertion of impecuniosity. His Honour Judge Lethem, sitting at Central London County Court, upheld this.
Lord Justice Coulson noted that neither judge had a copy of the Royal Mail scheme. “I respectfully consider that, without sight of it, they reached the incorrect conclusion that [it] was not either first-class post, or alternatively, another ‘service which provides for delivery on the next business day’.”
He gave several reasons, including the fact that Royal Mail described it as a version of first-class post that is signed for. “In every other way, particularly in respect of delivery, both services are described using the same words. It would be very difficult to suggest that ‘Signed For 1st Class’ post was not simply a species of first-class post, and therefore to be treated as such by rule 6.26.”
Even if it was not first-class post as such, it was another “service providing delivery on the next business day”.
The judge said solicitors serving documents “need to know that, when they put something in the first-class post, the deemed service provisions of the CPR have been triggered.
“It makes no sense to suggest that, by using the ‘Signed For 1st Class’ service, a solicitor is in a worse position than if he or she had used ordinary first-class post; that, although they had posted the document in time, they were obliged constantly to check with the intended recipient that it had actually been received and signed for within the time limit prescribed by the rules or the court’s order.”
Also, Coulson LJ said he would be concerned that otherwise an “unscrupulous intended recipient” could evade service altogether simply by refusing to sign.
“Solicitors use the ‘Signed For 1st Class’ service presumably for added protection, because they obtain a record of receipt. It would be entirely counterproductive to conclude that the use of this service had the opposite effect and could allow an intended recipient to avoid service altogether.”
As a result, the reply was deemed to have been served on the second day after it was posted, meaning the claimant’s default in complying with the unless order was of two, rather than five, days duration.
Nonetheless, Coulson LJ went on to uphold the refusal of relief from sanctions. “The appellant and his solicitors have never engaged with the need properly to plead and prove his impecuniosity in support of the claim for credit hire charges.
“They did not do that at the outset of the claim; they did not do so when the subject of an unless order; and they have not done so subsequently. In those circumstances, there was no basis on which the court could grant the appellant relief from sanctions.”