Diriye v Bojaj & Anor

A Royal Mail Signed For 1st Class service falls within CPR 6.26. It is either First class post or another service providing delivery on the next business day. Service is therefore deemed on the second business day after posting. Actual receipt or signature is irrelevant.

Relief from sanctions may nevertheless be refused where a party has materially failed to comply with an unless order. Under the Denton approach, seriousness and significance depend on the nature and context of the breach, not merely its duration or effect on a trial date. A claimant seeking credit-hire rates on grounds of impecuniosity must properly plead and prove the supporting facts. A bare assertion, followed by delay in seeking relief, can justify refusal.

The appellant claimed damages arising from a road traffic accident, including credit-hire charges. He asserted impecuniosity but did not set out supporting facts. An unless order required him to serve a reply pleading all such facts and to provide specified financial documents.

The reply was posted by Royal Mail Signed For 1st Class on the final day but was received later. A District Judge held that the service fell outside the deemed-service regime and refused relief from sanctions. On a first appeal, the Circuit Judge upheld that decision.

On this second appeal, the central issues were whether Signed For 1st Class service fell within CPR 6.26 and whether the District Judge had permissibly refused relief under CPR 3.9.

1. Appeal dismissed. Coulson LJ, with whom Nicola Davies and Rose LJJ agreed, held that Royal Mail Signed For 1st Class is within the postal-services limb of CPR 6.26. It is First class post with an added proof-of-delivery feature, or alternatively another service providing delivery on the next business day. The reply was therefore deemed served on 6 April 2018, two days after posting.

2. Deemed service displaces any inquiry into actual receipt. The purpose of the rule is certainty and the avoidance of satellite disputes about when a document was delivered, received or signed for. The separate reference in the table to delivery to a permitted address concerns personal delivery by a litigant or representative, rather than postal delivery.

3. That correction did not affect the result. The Court would interfere with a case-management decision only within the limited appellate standard. The District Judge had applied the correct principles and was entitled to refuse relief.

4. Applying Denton and Others v T H White Limited [2014] EWCA Civ 906, the breach was serious and significant. The failure was not confined to a two-day delay. The reply did not comply substantively with the unless order because it provided no facts about income, expenditure, or why ordinary hire charges could not be paid. A claimant relying on impecuniosity to recover higher credit-hire rates must plead and prove it; a bare assertion cannot be supplemented later in stages.

5. There was no good reason for the default. The mistaken reliance on a rule governing service of claim forms, and difficulties obtaining instructions, did not justify non-compliance. At the third stage, the two-month delay in applying for relief and the continuing failure to address impecuniosity strongly militated against relief. The respondents were entitled to oppose the application. The refusal of relief therefore stood.

• Court of Appeal (Civil Division): dismissed the second appeal and upheld the refusal of relief from sanctions.

• Central London County Court (HHJ Lethem): on 2 October 2019, dismissed the appeal from the District Judge and upheld the refusal of relief.

• Willesden County Court (Deputy District Judge Goodman): on 21 August 2018, refused relief from the sanction imposed by the unless order.