Default notices dates of service

[marylikes]

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?

 

What is the criteria for posting a DN. Is it enough to say "it would of been sent ...xyz", is there a need for an affadavit of service? Would the sender of a DN need to keep a record of sending/postage, would it be prudent for him to do so? Just to establish that situation really. Many creditors now will rely on (and apparently satisfy ssome courts) producing some sort of record to say one was produced, and further rely on "would of been sent"...

[marylikes]

Actually, thinking about it. Many large organisations are not asserting anything other than a reliance on s7 of the Interpretation Act. And thats it.

[richard_se11]

I have just seen a case that might be of interest. It seems to discuss service and default notices. I have not read it properly. Branden v American Express 2011 EWCA (Civ) 1187. Make sure you look at the right case as an earlier decision has been reversed.

Edited February 23, 2014 by richard_se11
typo

[fletch70]

Just to put a spoke into the works there has been a recent case arrow global v frost where the judge said two things

1) His opinion was that date if service was date posted

2) If he was wrong the evidence provided showed that it was served in time. That evidence was the comms log and the agreement between the creditor and ukmail.

I am sorry but i can not past the judgement as my attachments are limited. If you want to read it i can email it to the site team

[richard_se11]

is there a citation for that case, I gather it is County Court so persuasive not binding. If he considered that the date of service was the date served, I presume that was posted electronically, i.e. email, as that deemed serves same day (if before 4.30pm).

[fletch70]

It was actually sent by UK mail on a friday with delivery by the Monday. I have emailed the attachment to Citizen B with a link to this so please bear with Citizen B as they might not be around at the mo.

 

As far as I know email is not considered service for such documents at the moment

[theoldrouge]

the judge also ignored the opinions of Goode, and said 1/2 days short would be deminimus. I feel the judge had such a poor opinion of the Frosts,who had kept no paperwork anyway that the judgement is questionable at best

[fletch70]

the judge also ignored the opinions of Goode, and said 1/2 days short would be deminimus. I feel the judge had such a poor opinion of the Frosts,who had kept no paperwork anyway that the judgement is questionable at best

Yes the Judge clearly did not rate the defendant as a good witness however I think he did look at the evidence. Salary at time of recorded application about correct, salary at time of alleged application not so.

Clearly an HSBC/Midland card was in place at some point but no memory of that

 

CCA request was provided during case

 

I do have huge misgivings on the default notice and certainly re iterates that keeping the envelope with date of receipt is vital

[citizenB]

It was actually sent by UK mail on a friday with delivery by the Monday. I have emailed the attachment to Citizen B with a link to this so please bear with Citizen B as they might not be around at the mo.

 

As far as I know email is not considered service for such documents at the moment

 

 

sorry fletch have been away the weekend.. will go and check my mail BRB

[citizenB]

Here you go..

 

 

[ATTACH=CONFIG]49420[/ATTACH]

 

This is not a good judgment at all... and appears to fly in the face of other judgments, one of which was an appeal hearing, wasnt it ?

Edited February 24, 2014 by citizenB

[citizenB]

It is my understanding that UK Mail could not offer a next day service purely because they had to deliver to the Royal Mail for the "final mile".

 

Even on their website they did not claim to offer a next day service. - I think that might be covered in Harrison v Link.

 

Some other information for you in respect of Default Notices..

 

 

De Minimis Cannot Apply to s87(1) Default Notices

 

Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998.)

 

==============

 

Lord Justice Kennedy (Lord Justice of Appeal):

 

The court might overlook an error which could be described as no more than de minimus, but Mr Gruffyd realistically does not contend that the error with which we are concerned can be so described.

 

This was just an off the cuff comment, where the Lord Justice confused himself. The correct statement of the Law appears earlier in the Judgment when counsel for Swayne and co submitted:

 

Mr Hodgkinson:

 

…that this court has no discretion in the matter and invited our attention to other parts of the statute, particularly Section 60 and the sections associated therewith including Section 127 where it is clear that a discretion is given which is noticeably absent in the case of Sections 87, 88 and 89.

 

Lord Justice Kennedy:

 

In my judgment, Mr Hodgkinson is right for the reasons which he has given.

 

==============

 

A Default Notice has to be penny perfect, which does fit with the underlying statute. Particularly when you consider section 172 of the CCA74:

 

 

[citizenB]

I thought it was still possible to use this.

 

[ATTACH=CONFIG]49421[/ATTACH]

[fletch70]

Hi Citizen B , Thanks for that and hope you had a good weekend.

 

The pdf you posted follows everything that I thought and would certainly be used by me if I were defending myself. All I can say is what was in the judgement and yes I know it is only county court , and yes on some of the points I disagree with the judge but they were refused leave to appeal and I have sort of hung myself by my instance in the past of always using the law

[wap123]

Having spoken to my solicitor his opinion was:1. The CPR only defines first class post and other forms of service such as electronic and by hand, it does not define second class post2. Therefore if you can get your defendant to admit that second class post was used (that was the standard method in recent years due to cost) then the 1985 PD are still in place, as the CPR states that any previous directions remain in place unless the CPR itself updates them

[marylikes]

Having spoken to my solicitor his opinion was:1. The CPR only defines first class post and other forms of service such as electronic and by hand, it does not define second class post2. Therefore if you can get your defendant to admit that second class post was used (that was the standard method in recent years due to cost) then the 1985 PD are still in place, as the CPR states that any previous directions remain in place unless the CPR itself updates them

 

wap, nothing you've said above makes any sense to me. People are mentioning CPR. A Default Notice is not part of the Civil Procedure . Nor is it neccesarily part of pre action protocol. So how everyone is mentioning CPR in relationship to DN's baffles me. Its merely a Notice that you have Defaulted, it may or may not lead to further action, its a step a Creditor needs to take before he can assert his rights. So whether CPR says documents need to be served in a bright yellow envelope is neither here nor there.

The CCA itself spells out whats acceptable for Documents served under the Act.

176 Service of documents.

 

(1)A document to be served under this Act by one person ( “the server ”) on another person ( “the subject ”) is to be treated as properly served on the subject if dealt with as mentioned in the following subsections.

 

(2)The document may be delivered or sent [F1by an appropriate method] to the subject, or addressed to him by name and left at his proper address.

 

(3)For the purposes of this Act, a document sent by post to, or left at, the address last known to the server as the address of a person shall be treated as sent by post to, or left at, his proper address.

 

Seems straightforward to me, Documents required to be sent under the CCA can be sent by post?

 

Interpretation Act

7 References to service by post.

 

Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “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 been effected at the time at which the letter would be delivered in the ordinary course of post

 

This seems very straightforward to me. The only thing it doesn't address is how it was sent exactly as there is a few methods of "ordinary course of post". You could not prove the contrary unless you knew what it was supposed to be?

 

Thats where the 1985 Practice Direction helps, it clarifies it.

.........

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.

 

It should now be a straightforward matter. The issuer of the Default Notice will have a Affadavit of service or they have not. Service of such Document can be worked out from that very easily. Its either two days from posting or four days from posting.

 

Thats my take on it now from all the reading i've done. Unless i've missed something?

[wap123]

The reason for the original post was that the defendants solicitor had specifically told me that the 1985 Practice Directions were not current law anymore, particularly since the CPR updated the definition of several types of service. The exact definition of the type of postage/service used is crucial to most of these cases, else how can you demonstate that you didn't have the statutary 14 days to remedy - that is what you are missing I think. Simply quoting the CCA doesn't help you in court unless you can show you did not have the 14 days, and that is where the method of postage becomes crucial -1st or 2nd class and the repective definition would then be the difference between winning or losing that case

[marylikes]

Yes i'm broadly agreeing with you here. I think with a lack of anymore knowledge on it i'd intend to put forward the information (1985PD), as Richard says in post #21 on this thread, it will be for the Judge to decide. What seems obvious to me either way is that the onus is on the server of the notice to quantify its postage method, and not the other way round.

 

I've searched and up until now i can't find that the practice direction we're talking about has been revoked?

[Old Cogger]

I thought it was still possible to use this.

 

[ATTACH=CONFIG]49421[/ATTACH]

 

 

Judges are trying to say that is an out dated info, and the so called white book says different (but when asked to show in court the judge brushed it aside) even going to say 2 days is the norm and posted on a Friday means delivery on a Sunday? yes and I pointed out no Sunday deliveries since end off the 1950s only to be told it is in the White Book! The judges have no respect for legislation these days and should be investigated!

 

Bickford-Smith was quoted to her in two separate cases.

[BRIGADIER2JCS]

As far as I am aware the Senior Masters decision stands.

[fletch70]

It is a worry that a judge has said he believes that service is the day of POSTAGE and not receipt. I am sure that in an appeal that would be overturned but Mrs Frost was not given leave to appeal. I also understand that the legal team were similar to that who won the Mayhew case

[fletch70]

As far as I am aware the Senior Masters decision stands.

 

Clearly the Judge in the frost case does not agree

[richard_se11]

People are mentioning CPR. A Default Notice is not part of the Civil Procedure . Nor is it neccesarily part of pre action protocol. So how everyone is mentioning CPR in relationship to DN's baffles me. Its merely a Notice that you have Defaulted, it may or may not lead to further action, its a step a Creditor needs to take before he can assert his rights.

.........

Sorry Mary, I am a little confused. If a default notice [or particularly the interpretation of normal post] is not part of CPR as you assert, why are the 1985 Pratice Directions (essentially a practice direction to the 1985 Civil Procedure Rules) being quoted/relied upon?

[richard_se11]

Judges are trying to say that is an out dated info, and the so called white book says different (but when asked to show in court the judge brushed it aside) even going to say 2 days is the norm and posted on a Friday means delivery on a Sunday? yes and I pointed out no Sunday deliveries since end off the 1950s only to be told it is in the White Book! The judges have no respect for legislation these days and should be investigated!

 

Bickford-Smith was quoted to her in two separate cases.

 

Deemed service for a letter posted on Friday is Monday - it's the first business day after the day after posting (so posted at 10pm on Friday it is Monday). This is in the White Book (don't ask what page as my version is 2011), and is in Practice Direction 6A to the 1998 Criminal Procedure Rules. To argue that the 1985 Practice Direction is still in effect when the current Civil Procedure Rules and associated PDs are from 1998 seems strange to me, but when I have the chance I'll try and find whether they have been revoked/amended or substituted.

[wap123]

I don't think anyone is arguing that default notices are part of the CPR. The CPR is being quoted as whether or not a DN is legally valid depends on whether the person it is served upon has a clear 14 days or more to remedy. In order to determine this people who have been served DNs need to know how many days the law will allow for postage: this is where the 1985 PD and the CPR of 1998 come in - they define the days allowed for postage. It is not possible to determine the legal validity of most DNs on the question of the 14 days to remedy of you cannot establish that you were given less than 14 days - this is why people on this thread are referring to the CPR and the 1985 PD

[wap123]

The only reason I raised the issue of the 1985 PD in my original post is that the 1998 CPR does not define second class post, only first class. Therefore if you have a defendant admitting (as in my case) that second class post was used the issue was can you refer back to the 1985 PD. The 1998 CPR actually states in the preamble that pre-existing PDs may still be in place in they are not specifically revoked or altered by the 1998 CPR