Default notices dates of service

[wap123]

I am in the process of serving court papers on a creditor with regards to an invalid default notice, which in turn has led in my view to illegal reporting of a default to a CRA under Section 14 of the Data Protection Act 1998. I see the Interpretation Act and the Practice Directions of 1985 quoted frequently on these forums as follows:

 

Interpretation Act 1978, Section 7

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

2. Practice Direction

Service of Documents - First and Second Class Mail.

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4. This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

My case rests on the above Practice Directions, as the required 14 days for remedy would not have been given if the 4 working days definition above of second class post is correct (there is no proof of postage, and the default notice makes no mention of how it was posted).

The creditor's legal department have written to me claiming that the Practice Direction is "not current or good law" and they therefore use the Royal Mail's websites definition of second class post, which is 2 days including Saturdays. I see the above Practice Direction quoted by many people preparing actions or defences on this site but have not come across anyone else being told that this law is not current, nor can I find any clarification of this online elsewhere. Does anyone have any sources I can use to state that the 1985 Practice Direction definition of second class post is still in effect, or anything to suggest the contrary is the case? Any advice is much appreciated

[richard_se11]

I don't think second class post is an effective means of service, if you consult the current civil procedure rules, specifically Part 6, all available on the justice website.

Edited February 11, 2014 by richard_se11
typo

[citizenB]

I don't think second class post is an effective means of service, if you consult the current civil procedure rules, specifically Part 6, all available on the justice website.

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part06#6.1

 

 

I think CPR 6.26 is the one you are looking for. Business days are I believe to be Monday to Friday excluding weekends and Bank Holidays.

[wap123]

Thanks for replying. Just to be clear I am not talking about the business days regarding my serving of papers, but whether the previous Practice Direction definition of second class post being four business days is still legally in force, i.e. the previous Intrepretation Act/Practice Directions stated that if a default notice was sent without stating how it was posted then the law stated that the assumption was that it was served four business days later - is that still the case, or has the law changed as the creditor is stating (although they haven't quoted what law they believe is currently in place)? If four business days is still the legal definition of second class post then I did not have 14 days remedy, but if two business days is the current definition of second class post then I would have had 14 days

[citizenB]

Thanks for replying. Just to be clear I am not talking about the business days regarding my serving of papers, but whether the previous Practice Direction definition of second class post being four business days is still legally in force, i.e. the previous Intrepretation Act/Practice Directions stated that if a default notice was sent without stating how it was posted then the law stated that the assumption was that it was served four business days later - is that still the case, or has the law changed as the creditor is stating (although they haven't quoted what law they believe is currently in place)? If four business days is still the legal definition of second class post then I did not have 14 days remedy, but if two business days is the current definition of second class post then I would have had 14 days

 

 

I do believe this is still valid.

[wap123]

Thanks. Any idea of a legal text that I could refer to in my court papers that contains these Practice Directions?

[citizenB]

Thanks. Any idea of a legal text that I could refer to in my court papers that contains these Practice Directions?

 

As per your first post I would have thought !

[BRIGADIER2JCS]

What do consider to Unlawful in regard to the reporting to CRA files in your case.

[marylikes]

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part06#6.1

 

 

I think CPR 6.26 is the one you are looking for. Business days are I believe to be Monday to Friday excluding weekends and Bank Holidays.

 

I'm just researching this very thing myself. Its my understanding that CPR6 applies to service of Claims forms, Court forms and court documents generally and NOT the service of documents/notices generally.

As far as i can acertain S7 of the Iterpretation Act is the Authority for posting of documents generally.

I have the same query as the OP and i'm sure i read on here yesterday what it is specifically that connects that 1985 Order to the 1978 Act, i just can't find it again, but i'm looking !!!

[marylikes]

Think i found the post i was referring too, down near the end of the post............

http://www.consumeractiongroup.co.uk/forum/showthread.php?193018-cupcake68-Vs-Amex&p=2166205&viewfull=1#post2166205

[wap123]

Thanks for that. That post quotes +2 days as being the time allowed for service, whereas the 1985 Practice Directions defines second class post as 4 working days. Still trying to find confirmation that the 1985 Practice Directions are current, as the lawyer for the defendant in my case is still stating this law is not current, although they will not elaborate, so they may be bluffing

[wap123]

I have three defaults being reported by a DCA five years after they brought the debts from the underlying lenders, without ever serving notices of assignment on me that the debts were being sold on. I have only just found this out am am seeking an injunction under Section 14 of the Data Protection Act to have these defaults removed on the grounds that no evidence exists that these debts are legally in default status. Of the three defaults:1. No default notice exists - accepted by the defendant, but claims they don't need one2. A screenprint saying a default notice was "processed" at some stage five years ago has been obtained five years later at the request of the Financial Ombudsman3. A default notice has been produced (never received by me) that is invalid if the Practice Directions of 1985 are still in force, as it would then be taken to have been served 4 working days after the date of the letter (the defendant claims the Royal Mail's website definition of second class post as 2 working days should be used)It is the last of the three that I need to clarify, as I don't want to wait for six months to get to court only to find that the 1985 Practice Directions are no longer in force

[richard_se11]

The lawyer for the other side may well be right re service. The Editorial introduction to the Civil Procedure Rule at 1.0.2 states that the Civil Procedure Rules 1998 (CPR) apply to all proceedings in county courts, the High Court, and the Court of Appeal (Civil Division)…. The CPR constitute a single body of court rules, supplemented in certain respects by practice directions, covering the same procedural matters as those formerly covered by the RSC and the CCR. The current Practice Direction 6APD.3 at 3.1 states that to be effected by post it has to be “provides delivery next business day”. I have looked on the online version of the White Book, but have not seen anything that refers to either second class post or the 1985 Rules.

Edited February 21, 2014 by richard_se11
no paragraph markings

[wap123]

Thanks for the post. This is the issue. The lawyer for the other side accepts that the document was sent second class, although the current CPR (which may have superceded the 1985 Practice Directions) states that only first class post is deemed to be an acceptable method of service. I may have to hope that the possible damages in the two cases where they don't have any default notices at all may deter them from fighting the injunction hearing at all

[marylikes]

The lawyer for the other side may well be right re service. The Editorial introduction to the Civil Procedure Rule at 1.0.2 states that the Civil Procedure Rules 1998 (CPR) apply to all proceedings in county courts, the High Court, and the Court of Appeal (Civil Division)…. The CPR constitute a single body of court rules, supplemented in certain respects by practice directions, covering the same procedural matters as those formerly covered by the RSC and the CCR. The current Practice Direction 6APD.3 at 3.1 states that to be effected by post it has to be “provides delivery next business day”. I have looked on the online version of the White Book, but have not seen anything that refers to either second class post or the 1985 Rules.

 

CPR practice direction 50 indicates RSC orders are alive and kicking? Civil Procedure Rules 1998 also mentions specifically RSC 10, so unless its been revoked or something in the meantime i've no idea. I'd doubt it though. The fact the Valuation Office use it tells me its very much current too.

But lets not forget, its purely a practice direction to "interpret" s7 of the Interpretation Act and not a paractice direction to clarify CPR6.

[marylikes]

Found it !!

http://www.bailii.org/ew/cases/EWHC/Admin/2009/2924.html

 

Para 9, confirms the practice direction is alive and kicking, unless the High Court of Justice got it wrong

[richard_se11]

Found it !!

Para 9, confirms the practice direction is alive and kicking, unless the High Court of Justice got it wrong

 

The link didn't work for me; by a bit of detective work I assume you're referring to the criminal case of Gidden v Chief Constable of Humberside.

 

At para 9 Elias LJ refers to "a practice direction". There is no inference that I can see that the 1985 PD is "alive and kicking" as you suggest.

[marylikes]

Yes thats the correct case i was trying to link to. Although it does't specifically mention the 1985 PD, you think there is another PD that clarifies "the ordinary course of post" in s7 Interpretation Act 1978 ?

[richard_se11]

I think we might be mixing up the Practice Directions to the Civil Procedure Rules and the Practice Directions to the Criminal Procedure Rules.

 

The Court in Gidden were discussing the Criminal Procedure Rules, and at 7 Elias LJ said "It is only since 1994, when this section was introduced by the Criminal Justice and Public Order Act, that service by first class post has been permitted. Prior to that service by post had to be effected by using registered post or recorded delivery".

 

Can it be adduced from that before 1994 service of summons or crriminal matters could not be served by second class post (for the puposes of the deemed service). I am not sure whether any of this is affected by the 2013 Criminal Procedure Rules and subsequent PDs. The 2013 Rules are headed a re-statement of the Rules which may mean that everything before these [2013] Rules came into effect are no longer valid.

 

What are you trying to achieve with the 85PD?

Edited February 23, 2014 by richard_se11
last half sentence perhaps not apt

[marylikes]

Thanks for that Richard, its a bit of a minefield to me researching it as a novice. I'm pretty much in the same boat as the OP. Looking for clarification of the issue of posting /serving. I'm not so sure any of CPR6 relates to Default Notices? I assume that because CCA1974 has its own section dealing with service, which points to Interpretation Act s7. ? And also exactly in the same case as the OP has, if someone says that PD of 1985 is defunct, how to you counter that? Or am i looking at it from the wrong way, i.e if the opposites side solicitor says..."its defunct" then is the onus on the solicitor to show it is?

[richard_se11]

The current Civil Procedure Rules (and Practice Directions) are from 1998 which I understand to mean is that the earlier CPR (and PDs) from 1985 are no longer in force.

 

Also, Part 6 rules about service apply generally 6.1 This Part applies to the service of documents, except where –

(a) another Part, any other enactment or a practice direction makes different provision; or

(b) the court orders otherwise.

The Consumer Credit Act 1974 as amended by the Electroic Comminication Order 2004 S2(9) ...the definitions of the expressions “give” and “serve on” for “by post” substitute “by an appropriate method”. I have not located a definitive definition of "an appropriate method", but both the Civil and Criminal Procedure Rules seem to agree that first class post is, and define deemed service of first class post - but not second.

 

 

"if the opposites side solicitor says..."its defunct" then is the onus on the solicitor to show it is" surely in that case, as the judge is the arbiter of law, if A presented a statute to him and B argued that case was no longer in force, the judge would have to give his judgment on that particular point.

[richard_se11]

I have just read the authority on this. Sime at 6.25 (A Practical Approach to Civil Procedure, 16th Ed)

"Documents sent by slower delivery methods, such as second-class post, are not served in accordance with the rules. Such service would be irregular, though it is possible (but not certain) that it would be validated under r 3.10."

[marylikes]

I'm still struggling with the relevence to CP6

 

section 88 Goode

Not Less than 14 days after In calculating the minimum period specified by sub-s(2), '14 days' means 14 clear days, excluding the day on which the notice was served and the day on which the creditor proposes to take the steps specified in the notice: see Re Railway Sleepers Supply Co Ltd (1885) 29 ChD 204; R v Turner [1910] 1 KB 346; Re Hector Whaling Ltd [1936] Ch 208; Carapanayoti & Co Ltd v Comptoir Commercial Andre et Cie Sa [1972] 1 lloyd's Rep 139.

 

Service of Default Notice This may be done by post or personal delivery: CCA 1974, s 189(1). As to what constitutes an effective posting or delivery, see CCA 1974, s 176(2)-(5). If there is more than one debtor, a default notice must be delivered to each: see CCa 1974, s 185(1)(a).

A notice served by post is deemed to have been served at the time when it would be delivered in the ordinary course of post: Interpretation Act 1978, s 7, (41 Halsbury's statutes (4th edn) (Reissue) 989). If more than one debtor must be served (above) it appears the 14-day period specified in sub-s (2) would run only from the latest service; the creditor would, therefore be wise to ensure (a) that all such notices as served so far as possible simultaneously and (b) that if a date is specified in the notices it is more than the statutory minimum of 14 days after the date on which he hopes that all the services will be effected.

176 Service of documents

Commencement

31 July 1974: see CCA 1974, Sch 3, Note.

Amendment

Sub-s (2): SI 2004/3236, art 2.

Sub-s (7): Law of Property (Miscellaneous Provisions) Act 1994, s 21, Sch 1.

General effect

The section makes general provision relating to the service of documents under this Act. Compliance with this section means that a statutory notice will have been duly ‘served’ on ‘the subject’ for the purposes of the Act. The section is not exhaustive, however, in the sense that ‘proper service’ does not, per se, constitute effective service; for example, a notice of withdrawal under CCA 1974, s 57 or of rescission under CCA 1974, s 102 will be properly served if posted to a ‘subject’ specified in those sections, but it does not follow that the notice thereupon takes effect (see note to sub-s (2), below).

Serve, served, service

To ‘serve on’ means, for the purposes of the Act, to deliver, or send by post, to the subject: see CCA 1974, s 189(1). ‘Delivery’ includes personal delivery, and references to ‘serving’ a document therefore include giving the document to the subject: sub-s (8).

...

Sent by post

The effect of sub-s (2) is that provisions of this Act which require or authorise service of a document also authorise the service of that document by post, bringing into operation the Interpretation Act 1978 (IA 1978), s 7 (41 Halsbury's Statutes (4th edn) (Reissue) 989) by which service is deemed to be effected by properly addressing, prepaying and posting a letter containing the document. Unless the contrary is proved, service will be deemed to have been effected at the time when the letter would be delivered in the ordinary course of post. This provision will, accordingly, govern the efficacy of posted notices served under this Act except where it is excluded: see CCA 1974, s 69(7).

For decisions on the Interpretation Act 1889, s 26 which was to a similar effect as the IA 1978, s 7, see Sharpley v Manby [1942] 1 KB 217, [1942] 1 All ER 66; Sandland v Neale [1956] 1 QB 241, [1955] 3 All ER 571; R v County of London Quarter Sessions Appeals Committee, ex p Rossi [1956] 1 QB 682, [1956] 1 All ER 670; Beer v Davies [1958] 2 QB 187; Stylo Shoes Ltd v Prices Tailors Ltd [1960] Ch 396, [1959] 3 All ER 901; Moody v Godstone RDC [1966] 2 All ER 696, [1966] 1 WLR 1085; White v Weston [1968] 2 QB 647, [1968] 2 All ER 842; Cooper v Scott-Farnell [1969] 1 All ER 1781, [1969] 1 WLR 120; Hewitt v Leicester City Council [1969] 2 All ER 802, [1969] 1 WLR 855; Maltglade Ltd v St Albans RDC [1972] 3 All ER 129, [1972] 1 WLR 1230; Saga of Bond Street Ltd v Avalon Promotions Ltd [1972] 2 QB 325n; [1972] 2 All ER 545n; A/S Cathrineholm v Norequipment Trading Ltd [1972] 2 QB 314; Thomas Bishop Ltd v Helmville Ltd [1972] 1 QB 464, [1972] 1 All ER 365; Migwain Ltd (in liquidation) v Transport and General Worker's Union [1979] ICR 597.

 

[5.346A]

 

176A Electronic transmission of documents

[(1) A document is transmitted in accordance with this subsection if-

(a) the person to whom it is transmitted agrees that it may be delivered to him by being transmitted to a particular electronic address in a particular electronic form,

(b) it is transmitted to that address in that form, and

© the form in which the document is transmitted is such that any information in the document which is addressed to the person to whom the document is transmitted is capable of being stored for future reference for an appropriate period in a way which allows the information to be reproduced without change.

(2) A document transmitted in accordance with subsection (1) shall, unless the contrary is proved, be treated for the purposes of this Act, except section 69, as having been delivered on the working day immediately following the day on which it is transmitted.

(3) In this section, ‘electronic address’ includes any number or address used for the purposes of receiving electronic communications.]

Amendment

Inserted by SI 2004/3236, art 2 as from 31 December 2004.

[5.347]

[marylikes]

It may be fair to also say that (in the case of a large Bank etc.), they use a type of "Buisness Post" service, this is not "normal course of post" ?

[richard_se11]

It may be fair to also say that (in the case of a large Bank etc.), they use a type of "Buisness Post" service, this is not "normal course of post" ?

I would think it would be, if equal to first class post (i.e. delivered the day after posting) as the definition of just being Royal Mail was removed.

 

What is it precisely that you are tying to establish?