Background to the claim
In this case, Cabot Financial (UK) Limited were seeking payment of a debt under £5,000. The claim was raised and served on the respondent by next day recorded delivery post. Confirmation of formal service, using the appropriate simple procedure form (Form 6C), was lodged at court by the claimant, including the Post Office acknowledgement of receipt of postage of the claim form and Royal Mail tracking number.
The claim was not responded to by the respondent. Following the practice which had developed amongst some courts, the Summary Sheriff at first instance, took the view that the claimant had not lodged sufficient evidence to confirm that service had been made on the respondent, as no evidence of receipt by the respondent had been lodged. The Summary Sheriff accordingly dismissed the action. The claimant appealed to the Sheriff Appeal Court, which took the same view as the Summary Sheriff and upheld the decision. The claimant appealed to the Inner House of the Court of Session. The Inner House confirmed that any evidence of sending the claim is to be lodged i.e. a receipt of sending from the Post Office, but importantly, this does not mean evidence of delivery to the respondent. The Inner House commented that if there is to be an onus on the claimant to track the delivery via the Royal Mail Track and Trace System, then the law and the rules of Court, require to be amended to reflect that.
The Inner House accordingly allowed the appeal in this case and confirmed that the claimant's lodging of the form confirming service along with Post Office proof of postage receipt, constituted legal and valid service in terms of Simple Procedure Rule 18.2(4).
Comment
This decision has confirmed that, in Simple Procedure cases, any evidence of sending the claim should be provided to the Court and that this rule does not require the claimant to provide any evidence of receipt by the respondent. The respondent can apply to recall the Decision, should an error in service of the claim be discovered.
Helpfully, this decision has reaffirmed that proof of sending is proof of delivery and unless a party has evidence that service of a claim has failed, they do not require to search for evidence of receipt by the respondent. This should make service of claims more straightforward and provide more certainty for claimants.
This decision will be warmly welcomed by practitioners and claimants in this area. Recently, differing practices in Sheriff Courts across Scotland has proved tricky when anticipating what will be accepted by the Court as constituting valid and legal service in terms of Simple Procedure Rule 18.2(4). As the Inner House has pointed out, Simple Procedure is designed to be "simple and not difficult", and this recent issue has caused some turbulence in what is meant to be a relatively straight forward platform to navigate. It is hoped that the Inner House decision on this point will bring much sought-after clarity to this issue and allow Simple Procedure to live up to its name.
