Notification and service
7.125Service is a legal act.
1Notification is also used. For an unsuccessful attempt to distinguish service and notification see Akram v Adam [2005] 1 WLR 2762 at [37]–[43]. It involves an action that is in law sufficient to amount to the formal communication of a legally significant decision or other document. That communication may be to the tribunal or to someone else.
7.126The rules of procedure provide for service of documents. They provide for the forms in which service may be effected and with any time limits on service.
The importance of consistency
7.127It is at least desirable, if not actually essential, that there should be consistency in the application of principles to different forms of service. In
Woodward v Abbey National plc (No 2),
2[2005] ICR 1702 at [30]. Burton J took account of the importance of consistency between the rules that applied to communications by post, fax and email.
Permitted methods of sending and delivery of documents
7.128The rules of procedure provide for the sending and delivery of documents.
3In the absence of provision, ‘any effective means of sending documents is permitted or authorised’: Dyson LJ Levy v Secretary of State for Work and Pensions [2006] EWCA Civ 890 at [28]. UTR r13(1) to (5) is illustrative:
4See also: GRC Rules r13; HESC Rules r13; IAC Rules r12; Lands Rules r13; PC Rules r16; SEC Rules r13; Tax Rules r13; WPAFC Rules r13.13 Sending and delivery of documents
(1)Any document to be provided to the Upper Tribunal under these
Rules, a practice direction or a direction must be–
(a)sent by pre-paid post or by document exchange or delivered by hand to the address specified for the proceedings;
(b)sent by fax to the number specified for the proceedings; or
(c)sent or delivered by such other method as the Upper Tribunal may permit or direct.
(2)Subject to paragraph (3), if a party provides a fax number, email address or other details for the electronic transmission of documents to them, that party must accept delivery of documents by that method.
(3)If a party informs the Upper Tribunal and all other parties that a particular form of communication, other than pre-paid post or delivery by hand, should not be used to provide documents to that party, that form of communication must not be so used.
(4)If the Upper Tribunal or a party sends a document to a party or the Upper Tribunal by email or any other electronic means of communication, the recipient may request that the sender provide a hard copy of the document to the recipient. The recipient must make such a request as soon as reasonably practicable after receiving the document electronically.
(5)The Upper Tribunal and each party may assume that the address provided by a party or its representative is and remains the address to which documents should be sent or delivered until receiving written notification to the contrary.
E-mail
7.129If the tribunal agrees to accept a document by e-mail, service is effective as soon as a message is delivered to the website even if it is not forwarded to the tribunal by the website host at the time or even at all.
5Tyne and Wear Autistic Society v Smith [2005] ICR 663.Straddling the time limit
7.130The delivery of a document to a tribunal or a party may not be complete by the time of the deadline. For example: only some of the pages of a fax may have been transmitted. If the rules of procedure provide that the complete documentation for lodging a claim or appeal must be served by or within the stated time, it will not be valid if any part is received late.
6Woodward v Abbey National plc (No 2) [2005] ICR 1702. The Employment Appeal Tribunal there decided that for faxed documents the time of receipt was judged by the record of the Tribunal’s fax log. Otherwise, it is possible that the service may be effective.
7Burton J in Clark v Midland Packaging Ltd [2005] 2 All ER 266. That decision was disapproved in Woodward v Abbey National plc (No 2) [2005] ICR 1702 by the same judge, but that decision relied at least in part on the tribunal’s rule that the complete documentation must be received.Service by post
7.131As the rules of procedure authorise service by post, the issue arises whether section 7 of the Interpretation Act 1978 applies. This Act applies to primary legislation and, within the terms of section 23, to secondary legislation. Section 7 provides:
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.
The scope of section 7
7.132Section 7 deals with service and when it is effected. It does not deal with the issue of when a document was actually despatched. This distinction was drawn by the Court of Appeal in
Gdynia American Shipping Lines (London) Ltd v Chelminski.
8[2004] ICR 1523. The Court was concerned with a requirement in rule 3(3)(a) of the Employment Appeal Tribunal Rules 1993 that an appeal had to be instituted within ‘42 days from the date on which extended reasons for the decision … were sent to the Appellant’. Pill LJ explained:
9[2004] ICR 1523 at [10].In my judgment, the word ‘sent’ in rule 3(3) of the 1993 Rules is to be given its ordinary meaning and that is unaffected by section 7 of the 1978 Act. That section is concerned with the circumstances in which service is deemed to be effected and when, in such circumstances, it is effected. Section 7 is engaged to the extent that it is relevant if a decision were to be required as to when service is effected. That raises a different question from the question when the document was sent and the rules provide that it is the date of sending from which time begins to run. The deeming provisions of section 7 operate when service, or sending, by post is authorised but they operate to determine the date on which service is deemed to be effected and have no bearing on the issue in this case, which is when the documents were sent. The section does not bear upon the date of sending, which is the date provided by the Rules as the date from which time is calculated. It would have been relevant in the present case if rule 3(3)(a) had provided that time ran from the date when service was effected.
7.133The distinction between despatch and service is not simply a matter of the language used. There is an issue of interpretation which must be decided in order to determine whether the issue is one of despatch or service. The issue is complicated by the fact that the same language may be used to refer both to despatch and service. In Chelminski, for example, the legislation used the word ‘sent’, which the Court of Appeal held referred to despatch. However, section 7 refers to ‘send’ as a synonym for ‘service’. In Chelminski, the court interpreted the provision as dealing with the date from which the time for appealing ran and not with the service of the extended reasons.
7.134Nor does section 7 deal with the issue of when a document is actually received. In
Levy v Secretary of State for Work and Pensions,
10[2006] EWCA Civ 890. the Court of Appeal was concerned with a claim for a social security benefit that had been posted but had not arrived. The Court held that under the legislation the key issue was when the claim was made and that the legislation fixed this date as the date that the claim was received. Accordingly, section 7 did not apply.
11[2006] EWCA Civ 890 at [29] (Dyson LJ) and [46] (Pill LJ).Analysis of section 7
7.135This section contains two separate deeming provisions. One deals with whether service has been effected and the other with when. In
R v County of London Quarter Sessions Appeals Committee ex p Rossi,
12[1956] 1 QB 682. Parker LJ analysed it as follows:
This section, it will be seen, is in two parts. The first part provides that the despatch of a notice or other document in the manner laid down, shall be deemed to be service thereof. The second part provides that unless the contrary is proved that service is effected on the day when in the ordinary course of post the document would be delivered. This second part, therefore, dealing as it does with delivery, 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.
13[1956] 1 QB 682 at 700.7.136The significance of the date of receipt was emphasised by the Divisional Court of Queen’s Bench in
R v Kensingston and Chelsea Rent Tribunal ex p MacFarlane.
14[1974] 1 WLR 1486. The tenant in that case had not received notice of the hearing. The Court decided that, although the tribunal was not at fault, the notice it had sent had not been effective. Lord Widgery CJ said:
The authorities show that, notwithstanding the terms of section [7], if a notice required to be served is a notice of the kind where the date of service is important, it is always open to a person who has failed to receive a notice in the ordinary course of post to prove that it was not received by him at the relevant time, the time relevant to the particular matter with which the notice is concerned. It has further been decided that in notices of that character it is possible to prove that the notice was not served in time by showing that it was not served at all.
15[1974] 1 WLR 1486 at 1492.7.137Although the first part of the section is subject to a contrary intention appearing in the legislation, it is not subject to proof to the contrary. This led Salmon LJ in
Thomas Bishop Ltd v Helmville Ltd16[1972] 1 QB 464. to say:
It is unnecessary to consider whether, in a case in which the date of service is irrelevant, it would be open to a defendant to rebut the presumption under the first part of section [7] that service had been effected. It seems strange should he not be entitled to do so, but the language of the statute may create difficulties which the present case does not, however, make it necessary for me to attempt to resolve.
17[1972] 1 QB 464 at 470–471.Contrary intention
7.138Whether this is shown, according to Parker LJ in
R v County of London Quarter Sessions Appeals Committee ex p Rossi:
18[1956] 1 QB 682.… must depend on the exact words used in the legislation in question, and on the object with which the document is sent.
19[1956] 1 QB 682 at 701.7.139The word ‘send’ is often used. In its usual meaning, this refer only to the act of despatch. In
CA Webber (Transport) Ltd v Railtrack plc,
20[2004] 1 WLR 320. the Court of Appeal was concerned with section 23 of the Landlord and Tenant Act 1927, which refers to service of a notice ‘by sending it through the post’. Peter Gibson LJ said:
‘Through’ in the phrase ‘sending … through’ to my mind naturally connotes the method of sending. It says nothing of the onward transmission of the type contended for …
21[2004] 1 WLR 320 at [43]. See also Gdynia American Shipping Lines (London) Ltd v Chelminski [2004] ICR 1523.7.140However, the context may indicate that more is required. This was acknowledged in
Retail Dairy Company Ltd v Clarke.
22[1912] 2 KB 388. The court interpreted the word ‘send’ in the deeming provision in that case as requiring only despatch, but recognised that the context could indicate otherwise. Ridley J said:
Sending in the ordinary sense is merely despatching. The word ‘send’ may, however, be used in connection with other words so as to imply that by ‘sending’ is meant such a sending as that the thing may by the time specified pass into the hands of the person to whom it was sent.
23[1912] 2 KB 388 at 393.7.141A requirement that a document be ‘presented’ excludes the deeming provisions of section 7, as the document must actually reach the recipient. In
House v Emerson Electric Industrial Controls,
24[1980] ICR 795. the industrial tribunal legislation provided that a complaint must be presented to the tribunal before the end of a specific time. The Employment Appeal Tribunal held that this meant that it must actually be received. Talbot J said:
Section 7 deals with the position where an Act authorises or requires any document to be served by post. What is required here … is that the complaint shall be
presented to the tribunal. In our view – and there is previous authority to support it – one cannot equate ‘present’ with ‘post.’
25[1980] ICR 795 at 801–802.7.142Whether or not section 7 is excluded requires a consideration of the legislative context as a whole. For example: under TCEA, the rules of procedure allow a tribunal to set aside a decision made if service has not actually been effected.
26See chapter 15. This may suggest that section 7 does apply. If it did not, this provision would be unnecessary. (There was no such provision in
R v Kensingston and Chelsea Rent Tribunal ex p MacFarlane.27[1974] 1 WLR 1486.)
Proof to the contrary
7.143If section 7 applies, the deeming provision as to the time of service only applies unless the contrary is proved. There is no limit to the form of proof. In particular, it is not necessary to prove that the document was returned undelivered.
28Thomas Bishop Ltd v Helmville Ltd [1972] 1 QB 464. The issue of return is relevant as the authorities draw a distinction between a judgment regularly obtained and one which was irregularly obtained. If a judgment has been obtained against a party irregularly, that party has a right to have it set aside, whereas if it has been obtained regularly, the court has a discretion to set it aside and will consider the merits of the case before doing so. Judgment is regularly obtained if the court did not know of the non-delivery, but if it did know (for example, because it had been returned) the judgment is irregularly obtained. See Denning LJ in R v County of London Quarter Sessions Appeals Committee ex p Rossi [1956] 1 QB 682 at 693–694. This approach was endorsed as in compliance with article 6 by the Court of Appeal in Akram v Adam [2005] 1 WLR 2762 at [41]–[43]. It is unlikely that the contrary will often be proved
29Salmon LJ in Thomas Bishop Ltd v Helmville Ltd [1972] 1 QB 464 at 471. and any evidence to that effect should be tested rigorously.
30Buckley LJ at 475. For an example of the contrary being shown, see Levy v Secretary of State for Work and Pensions [2006] EWCA Civ 890 at [30]–[32] (Dyson LJ) and [46] (Pill LJ).Deeming provisions
7.144Section 7 is a deeming provision. The rules of procedure under TCEA have not used expressions such as ‘deem’ or ‘treat as’. However, they do contain rules that operate in substance as deeming provisions. For example: UTR r38(a) provides that the tribunal may proceed in a party’s absence if reasonable steps have been taken to notify the party of the hearing. Some of the authorities on deeming and denying access to a court may be relevant to such provisions.
Interpretation of deeming provisions
7.145These provisions are capable of producing unfair results. The courts recog-nise the dangers by limiting their scope. They are in principle permissible, but subject to controls.
7.146In
DEG-Dettsche Investitions und Entwicklungsgesellschaft mbH v Koshy,
31[2001] 3 All ER 878 at [16] (setting out counsel’s argument relying on this passage) and [20] (accepting that argument). the Court of Appeal approved of the statement on the proper approach to the interpretation of deeming provisions in Francis Bennion’s
Statutory Interpretation:
325th edn, Butterworths 2008 p950.The intention of a deeming provision, in laying down an hypothesis, is that the hypothesis shall be carried as far as necessary to achieve the legislative purpose, but no further.
7.147The use of the word ‘deem’ may mean ‘treat as irrefutably’. But, according to its context, it is also capable of being rebutted. This was recognised by Mummery LJ in the Court of Appeal in
Anderton v Clwyd County Council (No 2),
33[2002] 1 WLR 3174. where he said:
… the word ‘deemed’, as a matter of construction, is capable of meaning ‘presumed until the contrary is proved …
34[2002] 1 WLR 3174 at 30.7.148In the case of article 6, the provision must be proportionate and legitimate.
Denial of access to a court or tribunal
7.149If a deeming provision operates to bar access to a court or tribunal, it is not effective for that purpose.
R v Secretary of State for the Home Department ex p Saleem35[2001] 1 WLR 443. was a domestic law case. Statute authorised rules ‘regulating the exercise of the rights of appeal’. The rules provided that a document sent by post was deemed to be received two days later, ‘regardless of when or whether it was received’. This rule could operate to deny access to the Immigration Appeal Tribunal. There were alternative remedies, but they were not as effective as an appeal. The Court of Appeal decided that access to a tribunal was a basic or fundamental right akin to access to a court. An infringement of this right was permissible, provided that it was authorised by statute. The authority might be conferred expressly or by necessary implication. In the latter case, it must also be reasonable. As Roch LJ explained:
Even where the need for such a rule does arise by implication either because the purpose of Parliament cannot be achieved without it or the function of Parliament
36To make sense, this should read ‘the function that Parliament’. has laid on a person or body cannot be discharged without it, the rule will be ultra vires
37That is, ‘outside the power of’. the rule-making power if the rule as framed is unreasonable: if it is wider than necessary; if it infringes the fundamental right to a greater extent than is required.
38[2001] 1 WLR 443 at 450.The deeming rule in question was not valid, because it was unreasonable and operated to exclude rather than regulate the right of appeal. Having decided that the deeming rule did not apply, the Court decided that the gap thereby created in the legislation was filled by section 7 of the Interpretation Act 1978. The Court left open whether the deeming provision was valid in respect of notices other than an appeal to the Appeal Tribunal.
7.150This does not mean that every restriction on access, however trivial, amounts to a denial of access. Access to a court is not denied merely because the effect of a deeming provision is to reduce minimally the time available in which to initiate proceedings:
Beanby Estates Ltd v Egg Stores (Stamford Hill) Ltd.
39[2003] 1 WLR 2064 at [76].7.151Even if the limitation is not minimal, a restriction on access may be permissible. Access to a court or tribunal as a Convention right is not absolute. In
Anderton v Clwyd County Council (No 2),
40[2002] 1 WLR 3174. the Court of Appeal was concerned with a case in which a notice was served late under a deeming provision, but had actually arrived in time. Mummery LJ said:
41[2002] 1 WLR 3174 at [31].… the right of access to the courts is not absolute and that it may be subject to implied limitations: Golder v United Kingdom (1975) 1 EHRR 524 at 537 (para 38)). Thus, procedural rules setting time limits that cannot be waived or extended and laying down timetables for the conduct of litigation can, and often will, be lawful limitations on the Article 6 right imposed in pursuit of the legitimate aim of the good administration of justice. The limitations are allowed by the margin of appreciation afforded to States in regulating the right of access to a court, provided, however, that the limitations (a) do not restrict or reduce the access in such a way or to such an extent that the very essence of the right is impaired; (b) pursue a legitimate aim; and (c) represent a reasonable relationship of proportionality between the means employed and the aim sought to be achieved: Stubbings v United Kingdom (1996) 23 EHRR 213 at 233, paragraphs 48 and 52; Ashingdane v United Kingdom (1985) 7 EHRR 528 at 546, paragraph 57.
The Court decided that certainty was a legitimate aim for the deeming provision to promote.
Other cases
7.152If the case does not involve a denial of access to a court or tribunal, an interpretative balancing exercise is undertaken.
7.153
Beanby Estates Ltd v Egg Stores (Stamford Hill) Ltd42[2003] 1 WLR 2064. was a Convention right case concerning a notice under the Landlord and Tenant Act 1954 which was subject to a deeming provision in section 23 of the Landlord and Tenant Act 1927. Neuberger J held that the deeming provision had to be interpreted by reference to its language, context and purpose.
43[2003] 1 WLR 2064 at [60]. This required the court:
… to balance … certainty … allocation of risk, and the purpose behind s23 … against the fact that there will be occasional harsh or unfair results.
44[2003] 1 WLR 2064 at [86].7.154This approach was confirmed by the Court of Appeal in
CA Webber (Transport) Ltd v Railtrack plc.
45[2004] 1 WLR 320.Unilateral and transactional acts
7.155The courts draw a distinction between acts that are unilateral and those that transactional. A unilateral act is one that is effective without any act on the part of the recipient. A transactional act is one that is only effective with collaboration or some reciprocal action by the recipient.
7.156The rules of procedure under TCEA may specify whether it is sufficient for a document to be sent (for example: UTR r30(1)) or whether receipt is required (for example: UTR r21(3)). To that extent, the distinction between unilateral and transactional acts is not relevant. However, in some rules the language is not so clear. In those cases, the distinction is relevant.
7.157Notice requires communication and involves more than the despatch of the relevant documents. In a contract case, Russell LJ said:
But the requirement of ‘notice … to’, in my judgment, is language which should be taken expressly to assert the ordinary situation in law that acceptance requires to be communicated or notified to the offeror, and is inconsistent with the theory that acceptance can be constituted by the act of posting …
46Holwell Securities Ltd v Hughes [1974] 1 WLR 155 at 158. See also Browne-Wilkinson J in Swainston v Hetton Victory Club Ltd [1983] 1 All ER 1179 at 1182.But this may not require actual knowledge by the recipient:
What if the letter had been delivered through the letter-box of the house in due time, but the defendant either deliberately or fortuitously not been there to receive it …? … The answer might well be that in the circumstances the defendant had impliedly invited communication by use of an orifice in his front door designed to receive communications.
47Holwell Securities Ltd v Hughes [1974] 1 WLR 155 at 158.Lawton LJ agreed:
A notice is a means of making something known … If a notice is to be of any value it must be an intimation to someone. A notice which cannot impinge on anyone’s mind is not functioning as such.
48Holwell Securities Ltd v Hughes [1974] 1 WLR 155 at 160.7.158The same reasoning was applied to initiating legal proceedings by post
49Swainston v Hetton Victory Club Ltd [1983] 1 All ER 1179 at 1184. and by email.
50Tyne and Wear Autistic Society v Smith [2005] ICR 663 at [25]–[26].7.159
Presenting a document to a tribunal is effected by delivery and is a unilateral act. It does not involve any collaboration or reciprocal act by the recipient. A case is presented when delivered to the recipient office, even if there is no one present to receive it. The proceedings are commenced on receipt. In
Swainston v Hetton Victory Club Ltd,
51[1983] 1 All ER 1179. the Court of Appeal decided that a complaint to an industrial tribunal had been ‘presented to the tribunal’, as required by statute, when it was put through the letter box of the tribunal office, even though that was done on a Sunday when the office was shut. Waller LJ said:
In my opinion it is difficult to say that presentation requires any action on the part of the body to which presentation is made. Delivery of a document to the proper quarter does not require action on the part of anybody at that quarter … [S]ubsequent registration … is not part of the presentation.
52[1983] 1 All ER 1179 at 1184.7.160
Filing in the sense of
delivery to a place is also a unilateral act. In
Van Aken v Camden London Borough Council,
53[2003] 1 WLR 684. the Court of Appeal decided that a party had filed a document, as required by the Civil Procedure Rules, by ‘delivering it … to the court office’ when it was posted through the letter box of the relevant office. Ward LJ said:
54[2003] 1 WLR 684 at [58].… delivery seems to me to involve a unilateral, not a transactional, act. The ordinary meaning of the words, therefore, ‘posting through the letterbox’, as was done here, would be sufficient.
7.161However,
delivery to a particular person requires actual receipt by the person. In
Aadan v Brent London Borough Council,
55(1999) 32 HLR 848. the Court of Appeal decided that a party had not filed a document, as required by the County Court Rules, by ‘filing it in the court office by delivering it to the proper officer’ until it was received by that officer. This could not be done when the office was closed. Chadwick LJ said that, in the context of the Rules:
‘delivery’ requires some element of reception. A document is not delivered to an individual unless the individual is there to receive it.
56(1999) 32 HLR 848 at 854.