Article by

Craig Donnelly

Who doesn’t love a legal drama where the protagonist is dramatically served with a court document? Unfortunately, real life as a lawyer doesn’t always live up to Hollywood’s version of events! But ensuring that a document is properly served on the recipient can be critical. Failure to do so can result in court actions being lost and rights or remedies being refused.

Cabot Financial (UK) Limited v Ryan Bell

In Scotland, it has long been thought that proof of sending was sufficient evidence that a court document had been served. In 2016 a new type of court action, called Simple Procedure, was introduced for debts of £5,000 or less. It’s fair to say that the Simple Procedure rules about how to serve a document have caused confusion with judgments from different courts providing conflicting interpretations.

This was the issue which arose in Cabot Financial (UK) Limited v Ryan Bell. In July 2021, Cabot served a Simple Procedure court action on Mr Bell. The document was posted using Royal Mail’s recorded delivery service. No response was received and Cabot asked the court to grant decree (judgment) against Mr Bell.

The version of the Simple Procedure rules in force in 2021 required Cabot to send a Confirmation of Formal Service document to the court along with “any evidence of delivery attached to it”. Cabot’s request for decree was rejected by the sheriff on the grounds that they had not provided “evidence of delivery”. The claim was subsequently dismissed.

Cabot appealed to the Sheriff Appeal Court. That was refused on the basis that the sheriff’s interpretation of the rules was correct and that the documents which Cabot had lodged did not evidence delivery. Cabot appealed again, this time to the Inner House of the Court of Session, where the case came before three senior judges for a hearing on 1 November 2023.

Since the Sheriff Appeal Court had heard the case, the Simple Procedure rules have been changed. Parties are now required to provide the court with a Confirmation of Formal Service document along with “any evidence of sending” the claim form. You may ask what was the point in the appeal if the rules have changed. Senior counsel for Cabot explained to the Court of Session that some courts still appear to be requiring proof of delivery and that this requirement was creeping into other forms of court procedure. A definitive ruling from the Court of Session would make clear to court staff, lawyers and litigants what was required.

Whilst the judgment is awaited, the questions being asked by the Court of Session judges indicated that we may see a return to proof of sending being sufficient.

Update: On 21 November 2023 the Court of Session issued its judgment in the Cabot Financial (UK) Limited v Ryan Bell appeal. The court held that, in line with the long-established presumption, proof of sending is proof of delivery. This will provide welcome news for Pursuers and Claimants when commencing court proceedings. The judgment makes it clear that a document sent by recorded delivery is presumed to have been delivered unless there is evidence to the contrary (e.g. the document is returned as undelivered).

How can Holmes Mackillop help?

A failure to properly serve a document can be catastrophic. Not serving a break notice correctly can mean that a landlord or tenant is stuck in a lease for many more years to come. Failure to serve court papers on time can result in a claim being prescribed, losing any right to damages or compensation. Warranty claims in corporate transactions usually have specific notice requirements which must be adhered to for the contract to be enforced.

At Holmes Mackillop, we have specialist expertise in ensuring that documents are correctly served on behalf of clients. Equally, we can check if a document you have received has been properly sent. We can advise you at an early stage to ensure that your legal rights are protected and to help you achieve your aims. Reach out to your usual contact or get in touch with your local office to see how we can help.

* Olivia McCue, a third year student studying Law at the University of Strathclyde contributed to this article.