England and Wales Court of Appeal (Civil Division) Decisions

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
		10th October 2001

Lord Justice May:

1. This is a defendant's appeal against the decision of His Honour Judge Longbotham sitting at Bristol County Court on 19^th February 2001. The 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.
2. 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.
3. 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).
4. 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).

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.

(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."

5. 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.
6. 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.
7. 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.
8. 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."

9. 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.
10. 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."

11. 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.
12. 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 court proceedings to a person's attention." Mr Regan also refers to the judgment of Sir Thomas Bingham M.R. in Forward v. West Sussex County Council [1995] 1 WLR 1469 at 1477B, where he said, with reference to the former Rules of the Supreme Court:

"The alternatives to personal service are allowed because they found a good working presumption (rebuttable, but still a good working presumption) that they will bring the proceedings to the notice of the defendant."

13. Mr Regan submits that, in the present case, the defendants had the relevant documents formally brought to their attention before the expiry of the extended time limit and that service was thereby effected. He submits that the function of a "deeming" provision is to provide for a situation where the actual circumstances either are not known or do not need accurately to be known. He refers to various dictionary definitions of the verb "to deem". He submits that "to deem" is the obverse of "to know" and that you deem what you do not know. He contrasts the use of the words "shall be deemed" in rule 6.7(1) with the words "will be treated" in rule 6.7(2).
14. Mr Regan points to the overriding objective in rule 1.1 of enabling the court to deal with cases justly. He emphasises that one element of this is that the court should ensure that the parties are on an equal footing. Rule 1.2 provides that the court must seek to give effect to the overriding objective when it exercises any power given to it by the Rules or interprets any rule. It would not be just to deprive the claimant of his claim when service was in fact effected within the extended time limit. The court should not find an inrebuttable presumption, contrary to the facts, which rule 6.7 does not expressly provide for. He submits that a rigid construction of the rule is unlikely to provide greater certainty or to diminish litigation. A defendant who is able to establish that he did not receive service by the deemed method of service is able to have any judgment or order set aside. A rebuttable presumption would not materially increase the extent of litigation.
15. Since the oral hearing, two recent additional authorities have come to the court's attention. Infantino v. MacLean (Douglas Brown J, 14^th June 2001) was reported in The Times of 21^st July 2001; and Anderton v. Clwyd County Council (McCombe J, 25^th July 2001) is a judgment given after the conclusion of the oral hearing in the present appeal. Having reserved its decision, the Court drew these two authorities to the attention of Counsel and invited written submissions, for which we are grateful. I shall refer to these two cases in more detail later in this judgment.
16. In my judgment, rule 6.7(1) has to be seen in a wider context than that which the parties initially addressed. Part 6 contains general rules about service of documents. It does not only apply to service of a claim form and particulars of claim. Rule 6.1 provides:

"The rules in this Part apply to the service of documents, except where –

(a) any other enactment, a rule in another Part, or a Practice Direction makes a different provision; or

(b) the court orders otherwise."

17. Rule 6.2 provides that a document may be served by any of five methods. These are personal service and the methods which reappear as five methods in the table to rule 6.7. Rule 6.4 provides for what constitutes personal service. This is sufficiently exemplified for present purposes by rule 6.4(3), which provides that a document is served personally on an individual by leaving it with that individual; and by rule 6.4(4), which provides that a document is served personally on a company or other corporation by leaving it with a person holding a senior position within the company or corporation.
18. Rule 6.3 provides that, subject to exceptions, the court will serve a document which it has issued or prepared. The exceptions include where:

"(a) a rule provides that a party must serve the document in question;

(b) the party on whose behalf the document is to be served notifies the court that he wishes to serve it himself;

(c) a practice direction provides otherwise;

…

(e) the court has failed to serve and has sent a notice of non- service to the party on whose behalf the document is to be served in accordance with rule 6.11."

19. Rule 6.3(2) provides that where the court is to serve a document, it is for the court to decide which of the methods of service specified in rule 6.2 is to be used. Paragraph 8.1 of the Part 6 practice direction provides that the method used by the court will normally be by first class post.
20. Thus, rule 6.7(1) is capable of applying to any document which is to be served in accordance with the rules; it deals with all permitted methods of service other than personal service; and it applies to documents served by the court as well as to documents served by the parties. In practice, a large number – probably the majority – of all documents to which the rule applies are served by the court. These include, for example, nearly all orders made in a county court and claim forms and other documents issued in the Production Centre based in the Northampton County Court to which rule 7.10 and the practice direction supplementing it applies. All court timetables which depend upon ascertaining a day of service of a document which is served other than personally have to look to rule 6.7. In my view, this is a strong general argument in favour of Mr Edwards' submission that rule 6.7(1) should be interpreted as providing for certainty. For example, rule 26.3(1) provides that, when a defendant files a defence, the court will serve an allocation questionnaire. Rule 26.3(6) provides that each party must file the completed allocation questionnaire no later than the date specified in it, which shall be at least 14 days after "the date when it is deemed to be served on the party in question". One of the parentheses following rule 26.3(7) explains that rule 6.7 specifies when a document is deemed to be served. Rule 26.5(1) provides that the court will allocate the claim to a track, when every defendant has filed an allocation questionnaire, or when the period for filing the allocation questionnaires has expired, which ever is the sooner. This is an example of a timetable which the court has to control, where the court serves the initiating allocation questionnaire, and where the court may be required to allocate the claim to a track even though one or more of the parties has failed to file the completed allocation questionnaire or communicate with the court at all. For this purpose, the court plainly needs a secure base date for its timetable.
21. I merely note for the moment that rule 6.8 provides for service by an alternative method and rule 6.9 provides that the court may dispense with service of a document. I will return to these provisions later in this judgment.
22. Rule 6.10 provides that, where a rule, practice direction or court order requires a certificate of service, the certificate must state that the document has not been returned undelivered. It must also state the details set out in a table which follows. The table includes personal service, the five methods of service in the table to rule 6.7 and service by an alternative method as provided in rule 6.8. For the five methods in the table to rule 6.7, the table in rule 6.10 requires certification of the date for which the table in rule 6.7 provides the deemed day of service. For example, for postal service, the certificate has to state the date of posting. From this, the second day after the document was posted can be ascertained as the deemed day of service.
23. Section II of Part 6 contains special provisions about service of the claim form. These include rule 6.14, which provides:

"(1) Where a claim form is served by the court, the court must send the claimant a notice which will include the date when the claim form is deemed to be served under rule 6.7.

(2) Where the claim form is served by the claimant –

(a) he must file a certificate of service within 7 days of service of the claim form; and

(b) he may not obtain judgment in default under Part 12 unless he has filed the certificate of service."

24. The reference in sub-rule (1) to the deemed date of service under rule 6.7 inferentially assumes that the court will not serve the claim form by personal service. It is plain that the purpose of these provisions is that, whether the claim form is served by the court or by the claimant, the other knows the date of its service for the purpose of the timetable which that service initiates. This again, in my view, strongly suggests that the deemed day of service provided by rule 6.7(1) and its table is to be regarded as fixed.
25. For a Part 7 claim, the details of the timetable my vary depending on, for instance, whether particulars of claim are contained in or served with the claim form (see rule 7.4 and rule 9.1(2)); or whether the defendant files an acknowledgement of service in accordance with Part 10 or a defence in accordance with Part 15 (see those Parts and rule 9.2). The time periods run from service of the claim form or service of the particulars of claim (see rule 10.3 and rule 15.4). If the defendant fails to file an acknowledgement of service or a defence within these periods, the claimant may obtain default judgment if Part 12 allows it (see rule 10.2 and rule 15.3). Under rule 12.1, default judgment means judgment without trial where the defendant has failed to file an acknowledgement of service or has failed to file a defence. By rule 12.3, one of the conditions which has to be satisfied before the claimant may obtain default judgment is that the time for filing one or both of these has expired. Part 13 contains provisions for setting aside or varying default judgment entered under Part 12. Rule 13.2 provides circumstances in which the court must set aside a judgment in default. These include where the judgment was wrongly entered because, among other things, the relevant time for doing so had not expired. Rule 13.3 provides:

"(1) In any other case, the court may set aside or vary a judgment entered under Part 12 if –

(a) the defendant has a real prospect of successfully defending the claim; or

(b) it appears to the court that there is some other good reason why –

(i) the judgment should be set aside or varied; or

(ii) the defendant should be allowed to defend the claim.

(2) In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly."

26. Rule 13.5 provides:

"(1) This rule applies where –

(a) the claimant has purported to serve particulars of claim; and

(b) the claimant has entered judgment under Part 12 against the defendant to whom the particulars of claim were sent.

(2) If a claimant who has entered judgment subsequently has good reason to believe that the particulars of claim did not reach the defendant before the claimant entered judgment, he must –

(a) file a request for the judgment to be set aside; or

(b) apply to the court for directions.

(3) The claimant may take no further step in the proceedings for the enforcement of the judgment until the judgment has been set aside or the court has disposed of the application for directions."

27. This appeal is, of course, centrally concerned with limitation. The relevant time period after which the present action may not be brought is 3 years from the date on which the cause of action accrued, that is the date of the accident. For relevant purposes, the claim is brought by issuing the claim form. This was done in the present case just before the expiry of the 3 year limitation period. In addition, the claim form has to be served in accordance with the rules. A failure to do so which cannot be rectified by one means or another will mean that the claim cannot proceed and often that a new claim will be statute barred. Those who delay serving their claim to the last moment risk disaster. The general rule is that a claim form must be served within 4 months after the date of issue – rule 7.5(2). Rule 7.6 provides that the claimant may apply for an order extending the period within which the claim form may be served. The general rule is that an application to extend the time for service must be made within the currently existing period for service. Rule 7.6(3) provides:

"If the claimant applies for an order to extend the time for service of the claim form after the end of the period specified by rule 7.5 or by an order made under this rule, the court may make such an order only if –

(a) the court has been unable to serve the claim form; or

(b) the claimant has taken all reasonable steps to serve the claim form but has been unable to do so; and

(c) in either case, the claimant has acted promptly in making the application."

28. In Vinos v. Marks & Spencer plc (Court of Appeal, 6^th June 2000), a claimant in a personal injury action served his claim form, particulars of claim and schedule of special damages 9 days after the expiry of the 4 month period in rule 7.5. He applied for an extension of time for serving the claim form and for an order remedying the error which his solicitors had made. He was unable to succeed under rule 7.6(3) because he was unable to satisfy the relevant conditions in that sub-rule. His essential case was that the overriding objective of the Civil Procedure Rules, rule 1.2 and rule 3.10 gave the court a discretion to extend the time for serving the claim form. This submission failed. It was held that the meaning of rule 7.6(3) is plain. The court has power to extend the time for serving the claim form after the period for its service has run out "only if" the stipulated conditions are fulfilled. The general words of rule 3.10 cannot extend to enable the court to do what rule 7.6(3) specifically forbids, nor to extend time when the specific provision of the rules which enables extensions of time specifically does not extend to making this extension of time.
29. In Kaur v. CTP Coil Limited (Court of Appeal 10^th July 2000), again a claim form in a personal injury case was served a few days after the expiry of the 4 month period from its issue. The claimant was unable to meet the conditions in rule 7.6(3). This court followed the reasoning in Vinos v. Marks & Spencer and applied it also to the additional submission that the court might get round the difficulty by relieving the claimant from sanctions under rule 3.9. Waller LJ said at paragraph 18 of his judgment in Kaur that even if rule 3.9 was capable of application, it was in his view clear that the reasoning in Vinos v. Marks & Spencer would apply as much to rule 3.9 as it did to rule 3.10.
30. In Elmes v. Hygrade Food Products plc (Court of Appeal 24^th January 2001), the claim form in a personal injury claim was sent on the last day of the 4 month period stipulated for service in rule 7.5(2) to the defendants' insurers, when it should have been sent to the defendants themselves. It was served in time, but on the incorrect person. The question was whether the court had power, on the claimant's application under rule 3.10(b) and rule 6.8, to remedy the error by an order deeming the service to have been good service by an alternative method not permitted by the rules. The claimant's submission to this court and the court's consideration of it are in paragraphs 12 and 13 of the judgment of Simon Brown L.J., with whom Penry-Davy J. agreed. Simon Brown L.J. said:

"12. Mr Porter's argument runs essentially as follows. The service of this claim on the insurers, instead of on the defendants themselves was an error of procedure within the meaning of Rule 3.10. So much indeed is accepted by the respondents. True it is that CPR 7.6 circumscribes the exercise of a discretion to extend time for service. It says nothing, however, as to the exercise of a discretion to deem service to be good. CPR 6.8 and 6.9 are the rules applicable to that situation. Those rules govern orders permitting service by an alternative method "where it appears to the court that there is good reason" and, indeed, to dispense with service altogether. It is, submits Mr Porter, sufficient "good reason" that the defendants' insurers were in fact dealing with this claim and that they would suffer no conceivable prejudice through the proceedings being served on them rather than upon their insured. The rules, accordingly, should be interpreted to give effect to the overriding objective in CPR 1.2. Unless, he submits, the rules unambiguously require it, claims should not fail because of a mistake which has caused no prejudice and can be corrected. Here, he submits, the rules do not unambiguously require that result. Given that the court has power to dispense altogether with service under 6.9, it must have a lesser power to deem service upon insurers in appropriate circumstances to be good service on the insured.

13. Attractively though the argument is put and tempting though it is to try and find some way of denying the defendants the windfall of a good Limitation Act defence, thereby throwing the relevant liability upon the claimant's solicitors' insurers, I, for my part, have no doubt that it must be rejected. The fatal flaw in the argument is this. It necessarily implies that rule 6.8, the rule which provides for service by an alternative method, can be applied retrospectively. If one asks what order the court is to make to rectify the mistake made here by the claimant's solicitors, it can only be an order under 3.10 that an order for alternative service, not in fact made under 6.8, shall be deemed to have been made. But the plain fact is that no rule 6.8 order here was made and, of course, there was never an application for alternative service, let alone for an order dispensing with service. Nor, it seems to me worth observing, would it ever have been proper to make any such order in this case. Mr Porter acknowledges as much. As he observes, but for the mistake there would never have been any necessity for such an order."

31. Simon Brown L.J. then referred to a decision of this court in Nanglegan v. Royal Free Hospital (23^rd January 2001), where the claimant had in error served proceedings on the defendant himself instead of on his solicitor in contravention of rule 6.5(4). The claimant sought to overcome that mistake by invoking respectively rule 6.1 and 6.8. Rule 6.1 was held to be too wide and general in its application to avail the claimant and rule 6.8 was held, consistently with Simon Brown L.J's own view, to be prospective rather than retrospective in its operation. It could not be applied after the event to cure some error already made in effecting the service.
32. The subject matter in Infantino v. MacLean (Douglas Brown J, 14^th June 2001) was a complicated medical negligence claim. Mrs Infantino consulted her solicitors in April 1999. The claim form was issued on 31^st August 2000, about a fortnight before the expiry of the limitation period. There were extensions of time for its service during which the claimant's solicitors were waiting for a protocol Letter of Response from Professor MacLean's solicitors. It was eventually agreed on behalf of the Medical Protection Society that there should be a further extension and that the particulars of claim would be placed in the DX system by no later than 26^th January 2001. On that date, the claimant's solicitors wrote to the Medical Protection Society enclosing the claim form, particulars of claim and other documents. By mistake, the letter and its accompanying documents were sent to the DX number, not of the Medical Protection Society, but of the Medical Defence Union. The mistake emerged too late for service in time and service on the Medical Protection Society was effected one day late. The claimant's solicitors applied to the district judge for an order that the claimant should be deemed to have made proper service. The district judge granted the application, apparently granting relief from sanctions under rule 3.9, although the district judge also seems to have made an order extending the claimant's time for service of the claim form and the particulars. Vinos v. Marks & Spencer was cited to the district judge, but Kaur v. CTP Coil was not. On appeal, Douglas Brown J. held himself to be bound by these two decisions, which precluded an extension of time or relief from sanctions in these circumstances under rule 3.9. The claimant, however, by respondent's notice sought an order under rule 6.1 and 6.9 dispensing with the requirement for service. It was submitted that rule 6.9 gave the court a very broad power to dispense altogether with the requirements of service. It could not be just to penalise a claimant who had not only fully complied with the pre-action protocol but provided the defendant with the fullest possible details of her claim. An order striking out her claim could not possibly be proportionate nor could it be seen as the fair result of the court seeking to deal justly with the case.
33. Douglas Brown J. considered this court's decision in Elmes v. Hygrade Food Products and quoted in full paragraph 13 of Simon Brown L.J's judgment, which I have set out earlier in this judgment. Douglas Brown J. said that it was clear that the Court of Appeal was not considering applications and orders under rule 6.8 and 6.9 because there never was an application under either rule. It seemed from the summary of counsel's argument that the Court of Appeal was not invited to consider rule 6.9 separately. Douglas Brown J. considered that the two rules should be considered separately. Rule 6.8 replaced the provisions for substituted service in the former Rules of the Supreme Court. He said that rule 6.9, on the other hand, is a new provision giving the court a general power on application to dispense with service of a document. He observed that the notes to rule 6.9 in Civil Procedure speculate that the most likely use of rule 6.9 in practice would be to dispense with reservice. Rule 6.9 must be read together with rules relating to the overriding objective. He then said at paragraphs 56 and 57 of his judgment:

"56. In these circumstances striking out this claim is not dealing with the case justly. It would in my view be an affront to justice and if the rules required that result then there would be something seriously wrong with the rules. The rules, however, are not defective. Rule 6.9 enables the court to reach a just result. If reservice can be dispensed with, so can service in the unusual circumstances of this case.

57. The remarks of Lord Justice Simon Brown [in Elmes], with which Mr Justice Penry-Davy agreed, are obiter and although persuasive are not binding on me. The core of Lord Justice Simon Brown's judgment on this point is that rule 6.8 cannot be operated retrospectively. He appears to rule out use of rule 6.9 for the same reason. The use of rule 6.9 here is not strictly retrospective use. The claimant is entitled to say here, with these facts and circumstances, in the court's discretion the court should exercise the power to dispense with the service. In all these circumstances I do exercise that discretion and dispense with service. He [s.c. the defendant] does lose a fortuitous limitation defence but there is otherwise no prejudice to the defendant on such an order being made and the matter should now proceed on the pleadings as they stand on particulars of claim and defence and no more time should be taken up on procedural wrangling."

34. Anderton v. Clwyd County Council is a decision of McCombe J. given after the oral submissions in the present appeal. The case concerned an allegation of negligence by teachers in failing to identify learning difficulties alleged to have been suffered by the claimant at the time of her education at the Council's schools. The claim form was issued on 5^th July 2000, very shortly before the expiry of the limitation period, the claimant having been born on 7^th July 1979. The time for service of the claim form under rule 7.5(2) was to expire on 5^th November 2000. There was evidence that the claim form was served by letter dated 3^rd November 2000. There was evidence from the defendant's solicitors that it was received on 7^th November 2000. It was submitted on behalf of the claimant that by virtue of rule 6.7(1) the claim form was deemed to have been served on Sunday 5^th November 2000 and was therefore served in time. It was submitted on behalf of the defendant that evidence of the date of actual service overrode any deeming provision in the rules that in any event, on the true construction of rule 6.7(1), Saturdays and Sundays were to be excluded from the calculation of time; and that accordingly, the second day after the letter was posted was Tuesday 7^th November 2000. It was submitted on behalf of the claimant that rule 6.7(1) did not exclude Saturdays and Sundays. If that were wrong, and if the claim form was, or must be treated to have been, served on 7^th November, an order should be made under rule 6.9 dispensing with the service of the claim form completely.
35. McCombe J. made findings of fact that the claim form was posted on Friday 3^rd November 2000 but was only received on Tuesday 7^th November 2000. He held that he could not infer from the evidence that the posting was by first class post, so that he probably could not find that sufficient had been shown to bring the case within the deeming provisions of rule 6.7(1) at all. The appeal would fail on that ground alone. On the basis, however, that he might be wrong about inferences to be drawn from the evidence, the next question was whether the fact of service occurring on a known date overrode the deeming provisions of rule 6.7(1). The judge was, therefore, addressing the main issue which arises in the present appeal, but the facts of that case were the converse of those in the present appeal. In the present appeal, the claimant seeks to have the benefit of a date earlier than the deemed day of service to preserve his claim. In Anderton v. Clwyd, the defendant was seeking to have the benefit of a later date than the deemed day of service to defeat the claim. In that case, the defendant's submission was that for the presumption to be irrebuttable there would need to be clear words to that effect and that the provision was really designed to deal with a case where there was no actual evidence of when service was effected. Rule 6.7(1) is, it was submitted, merely a convenient provision to deal with the situation where a document has been served and no response is received from the party so served. That was in substance Mr Regan's submission in the present appeal. Counsel for the claimant in Anderton pointed the contrast between the present rule and the equivalent provision in the former Rules of the Supreme Court, which contained the words "unless the contrary is shown". McCombe J. saw the force of this submission but did not think that the "deeming" provision was to be determinative in all cases, even in the face of positive evidence to the contrary. He said at paragraph 19 of his judgment:

"19. I do not believe, for example, that if a claim form is served on a defendant in fact on 7^th November and he then writes to the claimant to say: "I have the claim form. I calculate that I must acknowledge service by 14 days from now namely 21^st November." The claimant could reply, "Oh no. I posted this letter on the 3^rd. You are deemed to have been served on the 5^th. Therefore, your time expires on the 19^th." That to my mind would be nonsensical. It would equally be nonsensical if it were not open to the defendant to prove, where required, that he had never received the claim form at all and, indeed, that it had just be handed to him by a neighbour in whose letter-box it had accidentally been posted while that neighbour had been on holiday.

20. I think, therefore, that the presumption remains a rebuttable one and that the evidence in this case does rebut any presumption that the form was served on 5^th November."

36. For this reason, the judge held that the appeal must fail. In the present appeal, Mr Regan relies on this decision and its reasons.
37. McCombe J then stated his view on the issue whether rule 2.8 operated to exclude Saturdays and Sundays etc. from the time periods provided in rule 6.7(1), since this question had been fully argued before him. It was submitted that the parenthesis referring to rule 2.8 is not part of the rule itself. It was also submitted that rule 6.7(1) is not a rule which specifies a "period of time for doing any act", which is the wording of rule 2.8. There was also reference to a contrast between "day" and "business day" within rule 6.7 itself. The judge considered that the drafting was somewhat difficult to unravel. But he concluded that the clear intention behind the reference to rule 2.8 in rule 6.7(1) is to indicate that Saturdays and Sundays etc. should similarly be excluded from calculations of all kinds of deemed service, except those where express provision is otherwise made. Thus on the facts before him the deemed date of service was Tuesday 7^th November 2000 and for that reason also the appeal would fail.
38. McCombe J. then considered the application for an order under rule 6.9 dispensing with service. The application rested substantially on the decision of Douglas Brown J. in Infantino v. McLean, which McCombe J. considered at length. He noted that Douglas Brown J. was referred to this court's decision in Elmes v. Hygrade Food Products, and McCombe J. quoted extensively from that decision, including paragraphs 12 and 13 of the judgment of Simon Brown L.J., which I have set out earlier in this judgment. McCombe J. said that the court in Elmes was clearly dealing with an application under rule 6.8 only. However, it seemed to him to be clear that the court considered that equivalent considerations applied to rule 6.9 and that the court had concluded that there was no power to correct the unfortunate mistake that had been made. To his mind, this must have meant that there was no power under rule 6.9 either. He referred to passages in the judgments in Vinos v. Marks & Spencer, and said that for his part he would have thought that those judgments precluded an application based upon rule 6.9 in the circumstances of his case. He indicated extreme difficulties in reconciling the decision in Infantino v. McLean with either the powerful dicta in Elmes or the rationale behind the decisions of the Court of Appeal in Vinos v. Marks & Spencer and Kaur v. CTP Coil. But he said that he must follow the Infantino decision, unless he was satisfied that it was plainly wrong. In the result, since that case appeared to be the only direct authority on rule 6.9, he felt duty bound to follow it and to hold that he did have a discretion to dispense with service in the case before him. However, on the merits he declined to exercise it.
39. In the present case, Mr Regan was not, I suspect, aware until after the oral hearing of the decision in Infantino v. McLean, and he did not initially submit in the alternative that the court had a power which it should exercise to dispense with service. There was however included in the appeal bundle a note of a decision of Judge Overend in the Truro County Court on the 17^th May 2000, in which he held that the deemed service provisions in rule 6.7(1) were effective to displace the reality of the receipt of the claim form by the defendant; but that there was jurisdiction to override the provisions as to service in rule 6.1(b) and even to dispense with service altogether under rule 6.9. The judge granted an application made by the claimant at the hearing dispensing with service.
40. Upon the court inviting further submissions, Mr Regan submitted that, if the court had power to dispense with service in a case such as this, this is just the sort of case in which it should be exercised. Mr Edwards submitted that the issue was not properly before the court supported by an appropriate respondent's notice.
41. It is evident that there is a number of respects in which the interpretation of the CPR Rules relating to service of documents is causing difficulty and that on occasions different courts are reaching different conclusions on some of them. Not all these point arise for direct decision in this appeal, but it will be helpful for this court to give guidance which I hope will help to resolve the difficulties.
42. On a preliminary matter, it is not, in my view, generally helpful to seek to interpret the Civil Procedure Rules by reference to the rules which they replaced and to cases decided under former rules. I maintain what I said at paragraph 17 in Vinos v. Marks & Spencer as follows:

"Mr Lord, on behalf of the respondents, made written submissions and Mr Peirson made oral submissions by reference to what they submit the position would have been under the former Rules of the Supreme Court. In my judgment, these submissions are not in point. The Civil Procedure Rules are a new procedural code, and the question for this court in this case concerns the interpretation and application of the relevant provisions of the new procedural code as they stand untrammelled by the weight of authority that accumulated under the former Rules. … There is, in my judgment, no basis for supposing that rule 7.6 in particular was intended to replicate, or for that matter not to replicate, the provision of former rules as they had been interpreted."

43. It is not, therefore, I think, persuasive either way to observe that former rules about deemed service contained the words "unless the contrary is shown".
44. Although, as I have indicated, the date of service of a document will often be an integral part of a timetable provided by the rules or for other reasons important, there will be many instances in which it will be of lesser importance. Fixing timetables or otherwise controlling the progress of the case is part of the court's case management obligation to achieve the overriding objective (see rule 1.4(2)(g).) Failure to achieve a timetable which the rules prescribe or a date fixed by an order of the court may result in the imposition of sanctions. On the other hand, there will be instances when pedantic insistence on the literal terms of a timetable will be at best a quibble and at worst positively obstructive to achieving substantial justice. The new procedural code of the Civil Procedure Rules is positively packed with instances where the court has a wide discretion to manage cases to achieve substantial justice in accordance with the overriding objective. But there are some instances where the court has no discretion or only a limited discretion. It is not surprising if some of those – rule 7.6(3) is an example – are rules which relate to statutory limitation. The Limitation Act 1980 contains provisions which relax in certain instances the otherwise guillotine effect of the statute. Section 33 of the 1980 Act is perhaps the most obvious example and sections 11 and 14A may also be seen as providing a degree of relaxation. Generally speaking, however, statutory limitation periods act as a non-discretionary guillotine. A person who serves a claim form one day after the expiry of a statutory limitation period cannot normally appeal to the court's discretion to relieve him from the consequences. This court's decision in Vinos v. Marks & Spencer shows that, in rule 7.6(3) at least, the statutory policy of the Limitation Act has generally been carried through into the Civil Procedure Rules.
45. The cases to which I have referred are examples of situations in which parties have, for good reason or bad, taken the risk of not serving the proceedings until the very last moment. In some instances, they have made a mistake which could be regarded as trivial and in the result the proceedings have been served a day or two late. Recourse has been had to a number of provisions in the rules to try to discover a discretion wider than that which rule 7.6(3) provides to save a claim where the merits of the claim indicate that it should be allowed to proceed, and where the circumstances leading up to the late attempted service and mistake are regarded as favourable to the claimant's position. In Infantino v. McLean, the general merits were obviously strongly in favour of the claimant; less so in Anderton v. Clwyd. In cases such as these, however, it is necessary for the court to have a discretion. If there is a discretion, the merits can be deployed with the help of the overriding objective. However, the question whether there is a discretion is a matter of interpretation of the rules in the light of the overriding objective but without reference to the merits of the particular case. I maintain the view which I expressed in Vinos v. Marks & Spencer at paragraph 20 as follows:

"Interpretation to achieve the overriding objective does not enable the court to say that provisions that are quite plain mean what they do not mean, nor that the plain meaning should be ignored. It would be erroneous to say that, because Mr Vinos' case is a deserving case, the rules must be interpreted to accommodate his particular case. The first question for this court is, not whether Mr Vinos should have a discretionary extension of time, but whether there is power under the Civil Procedure Rules to extend the period for service of a claim form if the application is made after the period has run out and the conditions of rule 7.6(3) do not apply. The merits of Mr Vinos' particular case are not relevant to that question. … If you then look up from the wording of the rules and at a broader horizon, one of the main aims of the Civil Procedure Rules and their overriding objective is that civil litigation should be undertaken and pursued with proper expedition. Criticism of Mr Vinos' solicitors in this case may be muted and limited to one error capable of being represented as small; but there are statutory limitation periods for bringing proceedings. It is unsatisfactory with a personal injury claim to allow almost 3 years to elapse and to start proceedings at the very last moment. If you do, it is in my judgment generally in accordance with the overriding objective that you should be required to progress the proceedings speedily and within time limits. Four months is in most cases more than adequate for serving a claim form. There is nothing unjust in a system that says that if you leave issuing proceedings until the last moment and then do not comply with this particular time requirement and do not satisfy the conditions of rule 7.6(3), your claim is lost and a new claim will be statute barred. You have had three years and four months to get things in order. Sensible negotiations are to be encouraged, but protracted negotiations generally are not."

46. In my judgment, although dictionaries may give various meanings for the word "deem" in other circumstances, the provision in rule 6.7(1) that "a document … shall be deemed to be served on the day shown in the following table" and the heading to the second column in the table "deemed day of service" clearly mean that, for each of the five methods of service, the day to be derived from the second column is to be treated as the day on which the document is served. It is a fiction in the sense that you do not look to the day on which the document actually arrived, be it earlier or later than the date to be derived from the table. Thus in the present case, the claim form and other documents were posted a day late and the fact that they arrived earlier than the deemed day of service is no more help to the claimant than it would be help to the defendant if they had arrived later. As I say, I consider this to be the clear meaning of the words used which do not admit of the qualification necessary for the claimant's submission to succeed. This interpretation does not offend the overriding objective in cases where limitation is at issue for the reasons which I gave in Vinos v. Marks & Spencer. The use of the "deemed" in sub-rule (1) and "treated" in sub-rule (2) is odd but not, in my view, of any significance one way of the other. More significant is the fact, which Mr Regan accepted, that the interpretation of rule 6.7(1) has to apply, not only to service by first class post, but also to the other methods of service in the table. Granted that the purpose of service is to bring the document to the attention of the person to be served, these are all methods of service other than personal service which are not bound to put the document literally into the hands of the person to be served on any particular day. All these methods of service will not achieve this unless the person to be served is there to receive the document or takes steps to do so by, for example, going to the document exchange or checking the e-mail (see paragraph 3.3 of the Part 6 Practice Direction). Uncertainties in the postal system and considerations of this kind make it sensible that there should be a date of service which is certain and not subject to challenge on grounds of uncertain and potentially contentious fact. It seems to me that parties serving documents by these means are in a better position if the deemed date for service is certain than if it is open to challenge on factual grounds. This particularly applies to claimants wanting to serve a claim form at the very end of the period available to do so. The deemed day of service is finite and they will not be caught by a limitation defence where the last day for service is a Friday, if they post the claim form by first class post on the preceding Wednesday whenever it in fact arrives. Since, in my view, the deemed day of service to be derived from the table to rule 6.7(1) is not rebuttable by evidence, and since, for the reasons which I shall give, the limitation consequences for a claim form which is served late are not amenable to the exercise of the court's discretion, a claimant who makes the kind of mistake made in the present case and in other cases to which I have referred is in no different position from a claimant who issues the claim form by mistake a day or two after the expiry of the limitation period.
47. In my judgment, Judge Longbotham was wrong to hold otherwise in the present case, as was McCombe J. in Anderton v. Clwyd, although that was not the only basis of his decision. He was obviously correct to hold that service by first class post was necessary for rule 6.7(1) to operate at all. Rule 6.2(1) does not permit service by any other form of post. [ In theory, I suppose, an order under rule 6.8 might conceivably authorise prospectively service by second class post, but then the deemed date of service would be that specified under rule 6.8(3) and not that to be derived from rule 6.7(1).] He was also, in my view, obviously correct to hold that rule 2.8 applies to the periods in rule 6.7(1) for the reasons which he gave.
48. The interpretation of rule 6.7(1) which I have set out accords, in my judgment, with the general structure of other relevant rules which I referred to earlier in this judgment. It is significant that many of the documents to which rule 6.7 applies will be served by the court and that the practical working of the timetables by the court depends on secure dates which are not liable to be challenged by evidence of when documents actually arrive. I do not agree with Mr Regan's submission that, if rule 6.7(1) provided a rebuttable presumption only, this would not be likely to give rise to significant procedural squabbles. On the contrary, it seems to me that potentially variable dates for service of documents are likely to give rise to disputes, and experience shows that many of these would assume greater apparent importance than they deserve. More particularly, rules 6.10, 6.14 and 26.3(6) are examples of other rules which, in my view, are drafted on the assumption that the deemed date of service is fixed.
49. For the large majority of stipulated time periods, the court has power under rule 3.1(2) to grant discretionary extensions of time "except where these Rules provide otherwise". I have explained why, in my view, a person serving a document, including a claimant serving a claim form, is not disadvantaged by a deemed date of service under rule 6.7(1) which is not rebuttable by evidence. The position of a person receiving a document, particularly a defendant receiving a claim form, requires further consideration in the light of considerations such as those which troubled McCombe J. in Anderton v. Clwyd and which led him to conclude that the deemed day of service was rebuttable. As to documents other than those which, if they are not responded to, may lead to default judgment, it seems to me that squabbles may occur whatever the system. Most problems will be accommodated by sensible co-operation between the parties or, failing that, by discretionary orders for extension of time, if that accords with justice. As to documents which, if they are not responded to, may lead to default judgment, I have set out the relevant provisions of rules 9, 10, 15, 12 and 13 earlier in this judgment. In my judgment, Part 13 contains appropriate provisions to deal justly with circumstances where a defendant, against whom judgment in default of acknowledgement of service or defence has been entered, at worst did not in fact receive the claim form and particulars of claim before judgment was entered. Rule 13.5 is odd, in that it refers only to a claimant who has good reason to believe that particulars of claim did not reach the defendant before the claimant entered judgment. But it makes quite clear that the rules do not intend that such a defendant should be stuck with the judgment without due consideration by the court. If the judgment was wrongly entered because the conditions in rule 12.3 (1) or (2) and (3) were not satisfied, the court must set it aside under rule 13.2. In any other case, the court has a discretion under rule 13.3(1) to set the judgment aside or vary it. The discretion may be exercised under sub-rule (a) if the defendant has a real prospect of successfully defending the claim. That is the obverse of the relevant part of rule 24.2 and may apply whenever the defendant received the claim form and particulars of claim. Rule 13.3(1)(b) has a disjunctive alternative, so that the court may set aside or vary judgment entered in default if it appears to the court that there is some other good reason why the judgment should be set aside or varied or the defendant should be allowed to defend the claim. In my view, this is plainly capable of extending to circumstances where the defendant has not received the claim form and particulars of claim before judgment was entered against him. It is not an absolute right, but does not have to depend on the defendant having a real prospect of successfully defending the claim. The court therefore has sufficient power to do justice in these cases and will, no doubt, normally exercise this discretion in favour of a defendant who establishes that he had no knowledge of the claim before judgment in default was entered unless it is pointless to do so. The defendant, for instance, may have no defence to the claim, but may justifiably want to have the judgment set aside on the basis that, had he known about the claim, he would have satisfied it immediately without having an embarrassing judgment recorded against him. There may also be questions of costs. It is obviously open to a defendant to establish by evidence for these purposes the date on which the claim form and particulars of claim were received by him. That is not, in my view, precluded by my interpretation of rule 6.7(1), since the deemed day of service remains that which that rule provides.
50. In my judgment Mr Regan was initially correct in not seeking in the alternative to recover his client's position by applying for an order dispensing with service under rule 6.1 or 6.9. In short, I would resolve the palpable disagreement between Douglas Brown J in Infantino v. McLean and McCombe J. in Anderton v. Clwyd in favour of McCombe J. essentially for the reasons which he gave. The heart of the matter, in my view, is that a person who has by mistake failed to serve the claim form within the time period permitted by rule 7.5(2) in substance needs an extension of time to do so. If an application for an extension is not made before the current time period has expired, rule 7.6(3) prescribes the only circumstances in which the court has power to grant such an extension. Just as Vinos v. Marks & Spencer decides that the general words of rule 3.10 cannot extend to enable the court to do what rule 7.6(3) specifically forbids, I do not consider that rule 6.1(b) or 6.9 can extend to enable the court to dispense with service when what would be done is in substance that which rule 7.6(3) forbids. If rule 6.9 did so extend, it would be tantamount to giving the court a discretionary power to dispense with statutory limitation provisions. I also agree with McCombe J. that the whole sense of this court's decision in Elmes v. Hygrade Food Products is that what was there decided to be the effect of rule 6.8 also applies to rule 6.9. I am not sure that an order under rule 6.9, as distinct from one under rule 6.8, always has to be prospective. But I do consider that rule 6.9 does not extend to extricate a claimant from the consequences of late service of the claim form where limitation is critical and rule 7.6(3) does not avail the claimant. There will be plenty of commonplace circumstances in which formal service or reservice of a document may be pointless and where it will be sensible and economic for the court to dispense with it.
51. For these reasons, in my judgment Judge Longbotham's decision in the present case was wrong. I would allow the appeal and restore the order of the district judge.

Mr Justice Rimer:

52. I have read in draft the judgments of May and Pill L.JJ. I too would allow this appeal. With considerable diffidence, however, I am unable to agree in all respects with their interpretation of CPR rule 6.7(1) and I reach the same conclusion by a different route.
53. Rule 6.2(1) provides for five methods of serving court documents. The first is personal service. It is explained in rule 6.4, and where it is employed there will ordinarily be little or no scope for dispute as to the fact of service. Unlike personal service, the other methods of service permitted by rule 6.2(1) do not require the delivery of the document to a natural person. They instead permit service to be effected by the transmission of the document to a permitted address in one or other of various specified ways. The theory is that, once it has arrived, it will be likely to come to the attention of a natural person who will be a party to the proceedings (or an agent for that party), who can then take steps to respond appropriately to it. There is, however, no guarantee that, even if it does duly arrive, it will also come to the prompt attention of such a person. A claim form sent by first class post may arrive at the defendant's usual residence in the ordinary course of post, but if he is away on an extended holiday he may remain unaware of its arrival for weeks. In principle, though, I consider that in such a case the claimant would have properly served the claim form.
54. Rule 6.7 is headed "Deemed Service". May L.J. has set it out, and I will repeat only the first sentence of rule 6.7(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." The table then sets out the "deemed" day of service when a method other than personal service is employed. That is curiously exclusive, because personal service is a method of service "in accordance with these rules", yet it does not receive a mention in the table. Instead, it receives a separate mention in rule 6.7(2), which, in the cases there specified, provides that personal service effected on a particular day is instead to be "treated" as being effected on the following business day. I do not understand why the draftsman there favoured the word "treated" rather than "deemed". In my view, in the context in which they are used, they are essentially synonymous.
55. It is rule 6.7(1) that is of particular relevance. I note first that a "deemed day of service" specified in the table only applies to a document "which is served in accordance with these rules or any relevant practice direction …". In the case in which the serving party delivers the document to, or leaves it at, a permitted address, no more remains to be done in order to complete the service exercise, and the table provides that service will be deemed to have been effected on the following day. In such a case, as with personal service, there will no scope for doubt on the part of the serving party that he has also effected actual service of the document. In a case, however, in which he adopts any other of the tabled methods of service, he will or may be in some uncertainty as to whether the document has actually arrived. Whilst such cases may be exceptional, letters can go astray in the post or document exchange, and may either not arrive at all or may only arrive seriously late; and technological failures may result in faxes or e-mails not arriving. In these cases, in the absence of a response from the defendant, the serving party will be unable to prove that the document has actually arrived: he will be able to do no more than prove it was duly transmitted. In my view, however, the scheme of rule 6.7(1) is that a party who duly posts or otherwise transmits his document to the other party in accordance with the rules will be regarded as having "served" it within the meaning of the first five words of rule 6.7(1) and will then be given the benefit of the presumptions in that rule as to when it was "deemed" to be served on the other party so as to complete the service exercise. I do not interpret those presumptions as applying only to a document which is not only duly transmitted but also arrives at its intended destination. If they did, a claimant who posts his claim form to the defendant and then never hears another word would not be able to obtain a judgment in default without being able to prove not just that the form had been duly posted, but also that it had arrived. That would usually be impossible and the rules as to proof of service do not require it.
56. Rule 6.7(1) then provides that a document so served "shall be deemed to be served on the day shown in the following table." If it is sent by first class post, that is the second day after posting. In the present case, the claim form arrived on the first day after posting and it is essential to the survival of the claimant's action that he is entitled to say that the deeming provision in rule 6.7(1) is rebuttable and that it has been rebutted by proof of the actual date of service. The key question is whether the court can allow evidence of fact to override a fiction.
57. In approaching that question, I do not regard the absence from the opening sentence of Part 6.7(1) of words such as "unless the contrary is proved" as meaning that the presumption which the rule imposes must necessarily be irrebuttable. The inclusion of some such words – and such a formula was incorporated into the like provisions of the former RSC Ord. 10, r.1(3)(a) – would of course remove all doubt. But whenever an apparently unqualified deeming provision is incorporated into a statute or subordinate legislation, the question whether that provision is rebuttable or not will always turn on the interpretation of the provision read in the context in which it appears. In the present case, that context is not just rule 6.7. It is the CPR as a whole.
58. In DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v. Koshy and others [2001] 3 All ER 878, at 883, this court cited from Russell L.J.'s judgment in Murphy v. Ingram (Inspector of Taxes) [1974] Ch 363, in which he said at 370:

"It has been remarked upon high authority that in considering 'deeming' provisions in statutes it is important to have in mind what appears to be the purpose of their enactment [and Russell L.J. then listed three authorities]"

In the DEG-Deutsche case, Robert Walker L.J., with whose judgment Aldous L.J. agreed, then proceeded to deal with the appeal on the basis that those authorities showed that the statutory hypothesis is to be carried out as far as is necessary to achieve the legislative purpose, but no further (see [2001] 3 All ER 878, at 883). I approach this case on that basis.

59. The scheme of rule 6.7 is that a document which has been transmitted, left or personally served in accordance with their provisions will be "deemed" or "treated" as actually served on a particular, identifiable day. That day will always be a business day (rule 6.7 either so provides expressly, or else that is the practical effect of the words in parentheses at the beginning of the rule). If it is posted or sent by document exchange, it is deemed to arrive on the second business day after posting. In the ordinary course, it would arrive on the first day, but I infer that the extra day is provided so as to cover the case in which the document is posted or left at the document exchange after the last collection for that day. If the document is left at the permitted address, it is deemed to be served on the next day. Again, I infer that that is to cover the case in which it is left late in the day, so that fairness should treat as only served on a later day, and also to ensure that that later day is a business day. A document sent by fax will be deemed to be served on the same day if it is sent by 4pm on a business day, otherwise it is deemed to have been served on the next business day. If some other electronic method is used, service is deemed to be effected on the second day after transmission. This equates that method of transmission with that by post or document exchange. Again, service is deemed to be effected on a business day following the transmission day.
60. In the light of these considerations, I can identify only two purposes underlying rule 6.7. The first is that it is intended to fix a convenient day from which time will run during which the party served with the document is entitled to respond to it in accordance with the rules – whether by acknowledging service, serving a defence or whatever. That is obvious from the fact that service is deemed to be effected on a business day, the point of which is presumably, at least in part, so that time will run from the first day on which the receiving party will be able to invoke the assistance of lawyers. In that respect, the deeming provision is intended to confer an element of benefit on the recipient. The party serving the document will of course have no difficulty in identifying what the deemed day of service is. At least in some cases, however, there will or may be uncertainty about that on the part of the recipient. For example, a defendant receiving a claim form in the first postal delivery on Wednesday will or may not know whether it was posted at 11.55 pm on Monday or at 1.05 am on Tuesday. Nor, if he arrives at his office on Wednesday to find that a claim form has been left there, will he necessarily know whether it was left there earlier that day, or late the previous day. In those examples, he will look at rule 6.7 in vain to find whether his time for response runs from Wednesday or Thursday. There are, therefore, imperfections in the scheme of rule 6.7. But in most cases they will be unlikely to cause a problem. Documents served in accordance with that rule will usually arrive in the ordinary course of the chosen method of transmission; and if the receiving party has any doubts as to the day it is deemed to be served, he can always make a prompt inquiry about it and agree what it is.
61. The other, and related, purpose of rule 6.7(1) is this. In a procedural system which is so flexible as to permit service by post, document exchange, fax or other electronic method, the serving party will in most cases not know, and so will be unable to prove, that the document has actually arrived at its intended destination. Rule 6.7 plays an important role in relation to the service of claim forms. Most claims are undefended, in most such cases the defendant will make no response to the claim form and the claimant will want to obtain a judgment in default. A civilised system of justice will not permit him to do so unless he is able to prove that he has served the defendant and that the defendant's time for a defensive response has expired. Unless the rules positively provide for a deeming provision as to the fact and time of service, there will in many cases be practical difficulties in the way of a claimant proving his entitlement to judgment. Rule 6.7 is also directed at catering for this. It enables a claimant to adduce evidence from which the court will be prepared to presume that service has been effected and in turn to permit him to enter judgment.
62. In my view it is an obvious inference from those two purposes of rule 6.7, and in particular from the first purpose, that the rule presumes that documents transmitted in accordance with it will arrive in the ordinary course of the chosen method of transmission. First of all, in most cases they will so arrive. Secondly, the rule cannot sensibly be interpreted as intended to fix the intended recipient's time for responding to a document which either does not arrive at all and about which he knows nothing, or which only arrives much later than the time in which it ought to arrive in the ordinary course. Such cases will be relatively rare. But there will be cases where the document, although duly transmitted in accordance with rule 6.7(1), either does not arrive at all or only arrives much later than in the ordinary course. Letters do go astray or become delayed in the post. What happens if a claimant duly posts the defendant a claim form which gets lost and never arrives, or only arrives weeks later?
63. One thing which is likely is that the claimant will enter judgment in default. He will not know that the claim form has not arrived. Nor will he know, or be able to prove, that it has. But he will be able to prove that he duly posted it and that it has not been returned undelivered. He will therefore be able to prove that it was "served in accordance with these rules" for the purposes of rule 6.7(1), and that rule will enable him to satisfy the court that it was deemed to have been served on a particular day. Time having expired for a defensive response, and there having been none, he will be entitled to judgment. But on learning of the judgment, the defendant will be likely to complain that he never received the claim form, of which he was at all times in ignorance, and so could not and did not respond to it. What can he do about it?
64. In my judgment, it is obvious that he would be entitled to make an application to set the judgment aside under rule 13.3, and would be entitled on any such application to adduce evidence that he was not actually served with the claim form on the day on which rule 6.7 deemed him to have been served with it. Similarly, the claimant would probably be under an obligation to apply himself under rule 13.5 to have the judgment set aside, and on that application he too would have to adduce evidence proving that the particulars of claim "did not reach" (that is, were not actually served on) the defendant until some time after the day on which they were deemed to have been served on him. Again, if a defendant only received the claim form several days later than the deemed day of service, I consider that he would obviously be entitled to adduce evidence to that effect on any application he needed or wanted to make in support of the giving of directions as to his time for responding to it.
65. I do not understand either of May and Pill L.JJ. to disagree with the essence of my observations in the preceding paragraph, and Pill L.J. expressly accepts that the rule 6.7(1) deeming provision is not conclusive for all purposes. In my judgment, these observations show that it is not the purpose of rule 6.7 to impose a complete bar on either the claimant or the defendant from adducing evidence directed at proving that the date on which a document was actually served on the recipient was later than the day on which it is deemed to have been served on him. Despite this, I understand May L.J. still to maintain the proposition that the deemed day of service to be derived from rule 6.7(1) is not rebuttable by evidence. I confess that I am unable to reconcile that proposition with his acceptance that there are circumstances in which the parties can adduce evidence whose purpose is to do precisely that, namely to rebut the presumption that service was effected on the deemed day. To the extent that McCombe J in Anderton v Clwyd County Council expressed views in line with those I have favoured, I need hardly add that I respectfully regard them as correct and agree with them.
66. The particular point raised by this appeal is whether it is open to a claimant to prove that actual service of the claim form was effected earlier than the deemed day of service, and so in turn to show that the claim form was served within the time limits prescribed by rule 7.5 or any extensions granted under rule 7.6. The converse of that question is whether it is open to a defendant to prove that service was actually effected later than the deemed day of service and so prove a fatal non-compliance with those time limits. May L.J.'s view on the latter point is that it is not so open. I have at least some respectful reservations about that, but since that particular point does not arise on this appeal, I would prefer not to express any final view on it. My conclusion so far is simply that the correct approach to rule 6.7 is that it is no part of its purpose to impose a total ban on either a claimant or a defendant from proving that a document was actually served later than the day on which the rule deems it to have been served. There will be cases in which evidence can be adduced in order to show just that.
67. Turning to the particular point arising on this appeal, I have so far focused on the position of the intended recipient of the document. For reasons given, I regard it as entirely consistent with the purposes of rule 6.7 that he should, at least in certain cases, be entitled to prove that he either did not receive it at all, or only received it later than the deemed date of service. But it does not follow that the person serving the document, in this case the claimant, is entitled to adduce evidence that it was actually served earlier than the deemed date of service. Whether or not he can must again depend on identifying the purposes of the deeming provision in rule 6.7(1).
68. As to this, I have considerable difficulty with the claimant's argument. The difference between the serving party and the intended recipient is that the former has a choice as to the method of service, and as to when he effects it. If he chooses to serve his claim form personally, rule 6.7(2) provides that service effected before 4pm on Monday will be treated as effected on Monday, whereas if he serves it at 6pm it will be treated as effected on Tuesday. I can identify no basis on which a claimant who chooses to serve at 6pm could say that he had effected actual service on Monday so that Monday must be taken to be the day of service. The short point is that he will have deliberately adopted a method and time of service which treats service as being effected on the following business day, he must be taken to have understood that that is their effect and I can identify nothing in the policy underlying the rule to suggest that it did not intend him to be fixed with that effect. On the contrary, if he were to effect personal service on a non-business day, it would be contrary to their manifest purpose to allow him to claim that service must be treated as having been effected on that day: he would in that event be claiming unilaterally to deprive the defendant of a benefit as to the day of service which I interpret the rules as intending to confer on him. That cannot be any part of the intention or purpose underlying rule 6.7, Similarly, if he chooses to leave his claim form at the defendant's office at 10.00am on Monday, rule 6.7(1) deems it to have been served on Tuesday. That is the consequence the rules impose on that particular method of service, and I again cannot see that it can be an implied purpose of the rules that he should be able to say that he had actually effected service on Monday. He might have left it there at 11.55pm, when no-one was about. The purpose of the rule is plainly in part to cater for the possibility that service might be effected late in the day, or else on a non-business day, which is why it deems it to have been effected on the following day.
69. If that is the right approach to those two examples of the service methods provided for by rule 6.7, I cannot see that the claimant in the present case is in any different position merely because he chose to serve by first class post. Rule 6.7 must, in this respect, be interpreted uniformly. It must in my view be regarded as intended to provide the same sauce to the claimant who chooses to effect service by first class post as to the claimant who chooses to effect personal service at 3pm on a Sunday or at 6pm on a Monday. In this case, the claimant chose a particular method of service under that rule, which told him in advance that the claim form would be deemed to be served on the second day after posting. In my judgment, it is contrary to the apparent purpose of rule 6.7 that he should be entitled to say that he in fact effected service on the first day.
70. This means that whilst I consider that, at least in some cases, it is open to the intended recipient (and in some cases to the serving party: see rule 13.5) to rebut the presumption imposed by rule 6.7 and to prove that the document was served either later than the deemed day, or not at all, it is not open to the party serving the document to rebut the presumption by proving that it was served earlier than that day. I do not find this a particularly odd result, because the circumstances in which the serving party will wish to prove that the day of actual service pre-dated that of its deemed service must be exceptional, and will ordinarily only arise in cases in which the serving party has been negligent as to his chosen method of service.
71. For the reasons I have given, although they differ in certain respects from those of May and Pill L.JJ, I too would allow the appeal.

Lord Justice Pill:

72. In International Bottling Co Ltd v Collector of Customs [1995] 2NZLR 579 at 584, Tompkins J accepted that "on a matter of construction, the word "deemed" is capable of meaning "rebuttably presumed, that is presumed until the contrary is proved …". I agree. However, I agree with May LJ that the expression "deemed to be served" in CPR 6.7(1) is not in the context of the Civil Procedure Rules to be read as if limited by the expression "unless the contrary is proved".
73. The appropriate documents were, in fact, received by the defendants on Friday 8 September 2000, that is on the last day for service under the orders extending time. It is assumed that the documents were received by morning post so that the defendants had opportunity to deal with them that day. Having been posted by first class post on 7 September 2000, the effect of rule 6.7(1) is, however, to provide that service was effected not on 8 September but, a weekend having intervened, on 11 September 2000, that is the "second [business] day after it was posted" as provided by the sub-rule and the table which is a part of it. The documents are to be treated as having been received on 11 September with the result that the claim can be defeated by limitation. I reach that conclusion for the reasons given by May LJ in his comprehensive analysis of rule 6.7(1) in the context of the rules as a whole. It would not be helpful if I were to attempt to re-state the reasoning in words which would almost certainly be less persuasive.
74. I do not reach the conclusion with the same equaminity as May LJ however. Its effect is that the important and fundamental question whether a claim can be defeated by a defence of limitation in a case such as the present is decided not, as under the former rules, by the facts but by the operation of a fiction. The "dog" in the example given in the Oxford Companion to Law (1980) cited by May LJ in paragraph 8 is in fact a dog but must be treated as a person. The fiction, which I accept is adopted in rule 6.7(1), may be justified by the importance of certainty, even when what in law is certain is at variance with the facts, but I find the use of a fiction unattractive especially in rules designed to be comprehensible to lay people and user-friendly, as shown for example by the heading to Part 7: "How to start proceedings – the claim form".
75. The interpretation found to exist does limit the scope for factual disputes, and that is in its favour, but it does not eliminate the possibility of such disputes. There may still be disputes as to the day on which documents were posted where they are said to have been posted later than the afternoon collection from the post box, for example. Where a defendant claims not to have received the documents, there may be disputes as to whether they were posted at all.
76. Moreover, the deeming provision is not conclusive for all purposes if May LJ's analysis of rule 13.3(1)(b), with which I agree, is correct. A defendant may apply to set aside a judgment if he has not received the claim form notwithstanding that it is deemed to have been served on him if posted by first class post. Under rule 6.7(1), the documents are treated as having been served on a particular day, even if in fact they were not, but under rule 13(1)(b) the Court is entitled to override the fiction and consider the facts.
77. I have no difficulty with that right being available to a defendant or with the presence of a discretion in the Court to set aside the judgment. I also acknowledge that setting aside a judgment may justly be governed by rules different from those governing limitation. Allowing a defendant to rely on the facts to set aside a judgment and not allowing a claimant to rely on the facts to establish service within a limitation period diminishes, however, the concept of "equal footing" contemplated by rule 1(2)(a).
78. As to the relevance of the views he expressed in Vinor v Marks and Spenser (Court of Appeal 6 June 2000) to the present issue of construction, I do respectfully differ from May LJ. When a claim is to be brought, it is advisable not to wait until the last minute to bring it. That sound principle does not in my view, however, bear upon the question whether fact or fiction governs the date of service. Rule 6(7) is not to be construed on the basis that it is intended to be a sanction against delayed claims.
79. I agree with the views expressed by May LJ on the effect of rules 6.1 and 6.9. I do not agree with the view tentatively expressed by Rimer J that, while it is not open to a claimant to prove service earlier than the deemed date of service, a defendant may prove that service was effected later than the deemed date of service. On that issue, I agree with May LJ. I have thought it right to express, with diffidence, my misgivings about the adoption in rule 6.7(1) of a legal fiction but I agree that the appeal should be allowed.
Order: Appeal allowed with costs here and below in total sum of £10,488.37 broken down as to costs before district judge £2,475.80; costs before circuit judge £1,937.29; costs of appeal £6,075.28. (Order does not form part of approved judgment)