When giving a legal notice, the wisdom of using a method by which delivery is proven (i.e. recorded delivery or special delivery) has been reinforced by a recent decision of the High Court.
In the case in point, a company in dispute with a man served a counter-notice on him by post. Under the Interpretation Act 1978, postal service of a notice is deemed to be effective if the document is:
- properly addressed;
- pre-paid; and
- posted
If this is done, the document is considered to have been served ‘at the time at which the letter would be delivered in the ordinary course of post’.
However, there is a catch. If the addressee can ‘prove to the contrary’ (using the civil or ‘balance of probabilities’ level of proof) that delivery did not occur, then the document will not be considered to be served.
The company was able to prove to the Court that the notice had been properly addressed and posted. However, the Court accepted the addressee’s evidence that it had, in fact, not been delivered in time and was not therefore properly served.
For the small additional cost and inconvenience involved, if the postal system is being used to service a time-sensitive document, it makes sense to use a method (such as recorded or special delivery) by which delivery can be shown to have taken place, not just to put one’s faith in the regular postal service.
Failure to establish proper service of documents can often be fatal to a claim. We can advise you on all aspects of the conduct of disputes.