Bishop (Thomas) Ltd v Helmville Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SALMON,LORD JUSTICE BUCKLEY,LORD JUSTICE ORR |
| Judgment Date | 18 November 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J1118-1 |
| Date | 18 November 1971 |
| Court | Court of Appeal (Civil Division) |
[1971] EWCA Civ J1118-1
In The Supreme Court of Judicature
Court of Appeal
Civil Division
On appeal from Order of Mr Commissioner Eastham.
Lord Justice Salmon
Lord Justice Buckley and
Lord Justice Orr
Mr S.J. BURNTON (instructed by Messrs M. A. Jacobs & Sons)appeared on behalf of the Appellants (Defendants).
Mr H. BROOKE (instructed by Messrs Wilde, Sapte & Co.) appeared on behalf of the Respondents (Plaintiffs).
On the 3rd June, 1967, the Plaintiffs issued a specially endorsed writ claiming £8,152.05 from the Defendants as the price of goods sold and delivered. On the game day the Plaintiffs posted a prepaid letter containing a copy of the writ properly addressed by first-class mail to the Defendants at their registered office, 5, Lloyds Avenue, London, E.C.3. In the ordinary course of post this letter would have reached the Defendants' registered office on the following day, the 4th June. An appearance to a writ must be entered within 14 days after service, inclusive of the day upon which it is served. On the 16th June, no appearance having been entered by the Defendants, the Plaintiffs entered final judgment against them in default of appearance under Order 13, rule 1, for the amount claimed. On the 29th June the Defendants applied under Order 2, rule 2, to have that judgment set aside for irregularity on the ground that the writ had not been served upon them. This application was supported by an affidavit of the Defendants' Managing Director in which he swore "quite categorically" that no copy of the writ had been received by the Defendants. The Plaintiffs did not challenge the facts deposed to in this affidavit, but argued that nevertheless, the writ having been posted on the 3rd June, it was, in law, deemed to have been served on the 4th June.
The Master accepted the Plaintiffs' argument and accordingly refused to set the judgment aside for irregularity, but, exercising his discretionary powers under Order 13, rule 9, he varied the judgment by allowing it to stand in the reduced sum of £7,000, concluding that the Defendants had made out no arguable defence as to that amount but only as to the balance of the claim, namely, £1,152.05.
The Defendant appealed from the Master and that appeal was dismissed by the learned Commissioner. The Defendants now appeal to this Court from that dclelon. They contend that they are entitled to have the whole judgment act aside ex debito justitiae.
The Companies Act, 1940, Section 437(1)t reads as follows: "A document may be served on a company by leaving it at or sending it by post to the registered office of the company". It is well settled that a writ is a document within the meaning of this section, as it was under the corresponding sections of earlier Companies Acts which it replaced see White v. Land. 1693 Weekly Notes, 174. Section 437(1) (ibid) must be read in the light of Section 26 of the Interpretation Act, 1889, which, in so far as it is material, reads as fellows: "Where an Act passed after the commencement of this Act authorises or requires any document to be served by post… then, unless the contrary intention appears, the service shall be deemed to be effected by properly addressing, prepaying, and posting a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of peat".
Looking at the question raised in this appeal, unassisted by authority, the unchallenged facts deposed to by the Defendants' Managing Director seen to me clearly to prove that the writ in this case was net and therefore cannot be deemed to have see served on the 4th June. If the writ never reached the Defendants' registered office, obviously it did not arrive there on the 4th June. Accordingly, the time for entering an appearance to the writ cannot have expired by the18th June and judgment entered that day in default of appearance was irregular.
The Plaintiffs, argue that unless the party posting a document has notice that it has not been received by the addresses at the time it would be delivered in the ordinary course of post, then it is assumed to have been delivered in the ordinary course of post and any judgment or order by default obtained on the faith of that assumption is perfectly regular, and will not as a rule be set aside except on payment of costs and showing of merit. The Plaintiffs rely for this proposition on Regina v. County of London Quarter Sessions Appeals Committee. Ex parte Rossi. (1956) 1 Queen's Bench, 682. In my judgment, that authority decided nothing of the kind, although there is a passage at the end of Lord Denning' a judgment which supports the proposition for which the Plaintiffs contend. In my view, however, that passage goes further than was necessary for the purpose of deciding the case and I am afraid that, in spite of the great respect I have for any obiter dictum of Lord Denning's, I cannot accept it. The decision in Ex parte Rossi is accurately set out in the head note as follows! "… the primary obligation under section 3(1) (of the Summary Jurisdiction (Appeals) Act, 1933) to 'give notice in due course' had not been satisfied by adopting the permissive method cf sending the notice by (registered) post in a letter which was proved never to have been received by the party interested. The words imported the requirement that the notice given should be received by the party interested within a reasonable time; and interpreted in the light of section 26 of the Interpretation Act, 1889. the service of this notice could not be 'deemed to be effected'in the ordinary course of post, because it was proved never to have been effected in time or at all. Accordingly, there had been a defeat in procedure and an order of certiorari should be granted to quash the proceedings".
In that case the notice, being sent by registered post, had been returned undelivered. It followed that at the time of the hearing the appeals committee and the appellant knew that it had not been delivered, but neither Lord Justice Harris nor Lord Justice Parker relied on this fact in any way for their decision; indeed, Lord Justice Morris did not even mention it in his judgment. Lord Justice Barker stated at page 700: "The second part (of section 26 of the Interpretation Act, 1889) provides that unless the contrary is proved service is (deemed to be) effected on the day when in the ordinary course of post the document would be delivered. This second part, therefore, … comes into play and only comes into play in a case where under the legislation to which the section is being applied the document has to be received by a certain time. If in such a case 'the contrary is proved', that is, that the document was not received by that time or at all, then the position appears to be that though under the first part of the section the document is deemed to have been served, it has been proved that it was not served in time".
Hewitt v. Leicester Corporation , (1969) 1 Weekly Law Reports, 655, is another example of a case in which this Court has held that when the date of the service of a notice by post is relevant (in that case a notice to treat), proof that it was never delivered at all satisfies the requirement of the second part of section 26 by showing that it was not delivered in the ordinary course of post, and therefore not in time.
In Moody v. Godsons Rural District Council. (1966) 1 Weekly Law Reports 1085, an enforcement notice had been sent by prepaid registered post to the owner of a caravan site at his correct address, and there was a certificate of delivery purporting to be deigned by the addresses. He was persecuted for failing to comply with the notice and was fined. He appealed to the Divisional Court by way of case stated. He had sworn (and he had not been cross-examined) that the signature on the certificate of delivery was not his, since he had been out of the country at the time. She Divisional Court, dismissing the appeal, held that the notice had been properly served. I am not prepared to accept all the reasons given for that decision in the judgment. The decision itself, however, was no doubt correct. It seems clear that the notice was delivered in the ordinary course of post at the appellant's correct address. The appellant's case was based merely on the assertion that the notice had not come to his knowledge because he was abroad when it was served. This afforded no defence to the information brought against him for failing to comply with the enforcement notice, but might well have founded a strong plea in mitigation and justified a nominal fine.
The date of the service of a writ may in many cases be immaterial. In the present case, however, the Plaintiffs had no legal right to sign judgment in default of appearance on the 16th June if the writ had not been served on or before the 4th June. Unless the contrary was proved, service of the writ would be deemed to have been effected on the 4th June. But the contrary was proved, namely, that the letter containing the writ had not been delivered at the Defendants' registered office on that day at all. Accordingly the judgment signed indefault of appearance is in my view defective.
The Defendants, however, contend that whatever may be the true view in relation to the service by post of act ices of the hearing of an appeal, or notices to treat, or enforcement notices, the view which I have expressed should not he accepted in relation to the service by post of writs or County Court summonses, firstly because this view is inconsistent with the decision of this court in Cooper v. Scott-Fame. (1969) 1 weekly Law Reports, 120, and secondly by cause it would be extremely inconvenient and indeed and amount to a charter to...
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