Cabot Financial (UK) Limited v Bell
The question of whether proof of sending by post is proof of delivery has caused a few headaches over the years. This was the issue before the Inner House (appeal court) of the Court of Session in the recent case of Cabot Financial UK Ltd v Bell [2023] CSIH 43 in relation to the Simple Procedure Rules (claims up to £5,000).
Lord Carloway found that a document can be validly served by post without a confirmation of delivery being lodged. This overturned a decision of the Sheriff Appeal Court, which undoubtedly caused alarm in at least one or two solicitors’ offices, that a Simple Procedure Claim was not validly served without a confirmation from Royal Mail as evidence of delivery.
"A sheriff should not act as a rubber stamp"
The Simple Procedure claim concerned the credit card debt of the respondent. Cabot had raised a claim at Falkirk Sheriff Court and tendered service of the claim by next day recorded delivery. Confirmation of formal service was submitted to the court without a confirmation of delivery, but instead with a post office acknowledgment of receipt attached: in other words, proof of sending. The Simple Procedure claim was dismissed with the Sheriff reasoning that proof of delivery was easily obtainable from Royal Mail and that the Sheriff should not be viewed as “rubber stamping” service of a document.
After the decision was upheld by the Sheriff Appeal Court, Cabot appealed to the Inner House of the Court of Session, arguing that the Simple Procedure Rules had been incorrectly interpreted and that there was no requirement for a record of delivery to prove service. It was also argued that there is a longstanding presumption that a Claim Form has been received, with the burden on the intended recipient to disprove this, and that the decision of the Sheriff Appeal Court undermined the principles of Simple Procedure in that it increased the complexity and cost of a claim.
"Simple Procedure is supposed to be simple and not difficult"
Lord Carloway allowed the appeal, agreeing that the Simple Procedure Rules provided for a presumption of delivery and that any change to this would require an amendment to the Rules. The court followed Cabot Financial UK v Finnegan (2021) ruling that “completion of the form 6C, together with proof of recorded delivery posting, creates a rebuttable presumption that formal service has been effected, without the need for a delivery receipt. That presumption can be rebutted by the return of the document to the sheriff clerk”.
Lord Carloway added that “Simple Procedure is supposed to be simple and not difficult” and, as such, formal service should not depend on evidence from a third party.
