Godwin v Swindon Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice May |
| Judgment Date | 10 October 2001 |
| Neutral Citation | [2001] EWCA Civ 1478 |
| Docket Number | Case No: B1/2001/0553 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 October 2001 |
[2001] EWCA Civ 1478
Lord Justice Pill
Lord Justice May And
Mr Justice Rimer
Case No: B1/2001/0553
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL COUNTY COURT
His Honour Judge Longbotham
Royal Courts of Justice
Strand, London, WC2A 2LL
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
This is a defendant's appeal against the decision of His Honour Judge Longbotham sitting at Bristol County Court on 19 th February 200The Judge then allowed an appeal against the order of District Judge Bird on 21 st December 2000 by which the District Judge struck out the claimant's claim. The District Judge gave permission to appeal to the Circuit Judge. Schiemann LJ gave permission for this second appeal. In doing so, he said that he doubted whether this appeal had a real prospect of success (his emphasis) but he said that the point was an important one upon which judicial views differ.
The claimant was employed by the defendant's Highway's Department as a roadman. He sustained a back injury on the 26 th February 1997, the day after having returned to normal duties from light duties. He claimed damages for personal injury against his employers by a claim form issued on 17 th February 2000, shortly before the expiry of the statutory 3 year limitation period. There had been a letter before action from the claimant's solicitors to the defendants in August 1997, which was promptly acknowledged. During 1998 and 1999 there was a fair amount of correspondence between the claimant's solicitors and the defendants or their insurers. In November 1998, the insurance company asked for a medical examination of the claimant by Mr E. Smith, a consultant orthopaedic surgeon. Questions arose as to whether Mr Smith should be instructed as a single joint expert or not. The claimant was not in fact examined by Mr Smith until the 3 rd August 2000. It is not necessary to go into details of how this delay came about, since responsibility for it is not relied upon by either party in support of their case on this appeal. I note that there was some disagreement about whether Mr Smith was in the event jointly instructed. The parties also considered in correspondence whether the claim form and particulars of claim might by agreement be served without the required medical report.
The claim form having been issued on 17 th February 2000, it was required by rule 7.5(2) to be served within 4 months after that date. By order made on 26 th May 2000, a district judge extended time for service of the proceedings to 8 th August 2000. By order made on 4 th August 2000, a district judge extended time for service to 8 th September 2000. No point is now taken on the effectiveness of either of these orders. On 7 th September 2000, the claimant posted by first class post to the defendants, with copies to their insurers, the claim form together with particulars of claim and a response pack, but without a medical report or schedule of loss. The letter with its enclosures were received by the defendant on 8 th September 2000, the last day for service under the orders extending time. The claimant contends that service was effected within the extended time. The defendant contends that it was not because of the provisions of rule 6.7(1).
Rule 6.7 has as a side heading the words "Deemed Service". The rule itself provides:
"(1) A document which is served in accordance with these rules or any relevant practice direction shall be deemed to be served on the day shown in the following table.
(Rule 2.8 excludes a Saturday, Sunday, a Bank Holiday, Christmas Day or Good Friday from calculations of periods of 5 days or less).
(2) If a document is served personally-
(a) after 5 p.m., on a business day; or
(b) at any time on a Saturday, Sunday or a Bank Holiday,
it will be treated as being served on the next business day.
(3) In this rule-
"business day" means any day except Saturday, Sunday or a bank holiday; and
"bank holiday" includes Christmas Day and Good Friday."
| Method of Service | Deemed day of service |
| First class post | The second day after it was posted. |
| Document exchange | The second day after it was left at the document exchange |
| Delivering the document to or leaving it at a permitted address | The day after it was delivered to or left at the permitted address. |
| Fax | • If it is transmitted on a business day before 4 p.m., on that day; or • In any other case, on the business day after day on which it is transmitted. |
| Other electronic method | The second day after the day on which it is transmitted. |
The essential submission on behalf of the defendant, which succeeded before the district judge, is that, where service is effected by one of the means provided for in the table to rule 6.7(1), it is deemed to have been effected on the day provided in the second column in the table whenever in fact the document may have reached its destination or come to the attention of the receiving party. This contention found favour with the district judge, who accordingly struck out the claim. The claimant's essential submission is that the deemed day of service in the table is rebuttable if evidence proves that service was actually effected on a different day. This contention found favour with Judge Longbotham, who accordingly allowed the claimant's appeal.
The district judge considered the meaning of the word "shall be deemed". He considered that it meant in its context that the deemed day of service is "the date that the court is going to take as the date of service". The main question was whether this is a rebuttable presumption. He referred to the fact that under the former Rules of the Supreme Court and County Court Rules there were deemed dates for service "unless the contrary is shown". Such words made clear that under those Rules the presumption was rebuttable. These words do not appear in CPR rule 6.7(1). He said that this must be intentional and that it tallied with the fact that the period under the former rule had been reduced from seven days to two. He concluded that the presumption is not rebuttable.
Judge Longbotham considered that the deemed service provisions did not displace the reality. The defendant received service within the time allowed by the rules as extended by the court orders. If the claimant had not been able to show that the defendant received the document on the 8 th September, then the defendant would have been deemed to have received it on the 11 th September, because the 9 th September 2000 was a Saturday and rule 2.8 excludes a Saturday or Sunday (among others) from specified time periods of five days or less.
The parties' initial written and oral submissions were fairly narrowly confined. Mr Edwards, on behalf of the appellant defendants, submitted that the use of the words "shall be deemed to be served on the day shown in the following table" in rule 6.7(1) provided for a definitive legal fiction. This has the solid advantage of certainty and everybody, in particular claimants, know where they stand. He referred to the entry in the Oxford Companion to Law (1980) for the word "Deeming", which provides:
"A common modern kind of legal fiction. Particularly in statutes it may be provided that one thing shall be 'deemed to be' another, e.g. that a dog shall be deemed to be a natural person, in which case the 'deemed' thing must be treated for the purposes of the statute as if it were the thing it is statutorily deemed to be."
Mr Edwards submitted that the simple certainty afforded by this interpretation caused no injustice to claimants. On the contrary, they have the advantage of knowing for certain that, if they post a document by first class post on a Tuesday, its deemed day of service will be the following Thursday whether it was in fact delivered by then or not. If the deemed day of service were rebuttable, it would be open to a party to establish, not only that the document had arrived on the first day after it was posted (as in the present case), but also that it had arrived later than the second day after it was posted. If the deemed day of service is certain, procedural wrangles are avoided. He submits that the deemed day of service is not altered by actual knowledge, which has no place in deeming provision.
Mr Edwards draws attention to paragraph 2.2 of the Part 6 Practice Direction which provides:
"Service by DX is effected, unless the contrary is proved, by leaving the document addressed to the numbered box:
(1) at the DX of the party who is to be served, or
(2) at a DX which sends documents to that party's DX every business day."
Mr Edwards submits that the use in this provision of the words "unless the contrary is proved" shows that those responsible for drafting the rules were aware of their significance. I do not find this last submission persuasive one way or the other. Practice directions are not the responsibility of the Civil Procedure Rule Committee, whose responsibility under section 2 of the Civil Procedure Act 1997 is limited to making civil procedure rules. Practice directions are subordinate to the rules – see paragraph 6 of Schedule 1 of the 1997 Act. They are, in my view, at best a weak aid to the interpretation of the rules themselves. Further, paragraph 2.2 of this practice direction is concerned with the fact of service by DX, not its timing.
Mr Regan, on behalf of the claimant, emphasises the purpose of service, which is described in the Glossary to the Rules as being "steps required by rules of court to bring documents used in...
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