The recent case of Jewelite Trading Ltd v Lord Mayor and Citizens of the City of Westminster [2020] EWHC 545 (Ch) considered the presumption of service, providing a timely reminder just weeks before the UK went into lockdown and offices were closed. The facts of this case involved a party missing a hearing (because they were not aware of the hearing date) and a judge making an order against them in their absence. In the current climate – where many offices are closed and there is no one on site – the court’s strict application of the presumption of service means that practical steps must be taken to avoid potential disaster in legal proceedings.
Background to the case
The parties attended several hearings in relation to a disputed winding-up order against Jewelite. After numerous adjournments (due to Jewelite disputing the underlying debts), Jewelite withdrew its application to contest the debt.
In March 2019, the parties and their representatives attended a further winding-up hearing, at which the matter was listed for a further hearing at a date to be fixed. That further hearing was subsequently fixed for 8 July 2019 and notice of that date was sent by the following means:
1. By email to a paralegal at the solicitor’s firm representing Jewelite; and
2. By post to Jewelite’s registered address.
Jewelite did not attend the hearing on 8 July, nor did their legal representatives. In spite of this, the judge considered the evidence and made a winding-up order in Jewelite’s absence.
Jewelite sought to appeal the winding-up order, asserting they were not validly served with notice of the hearing.
Was there valid service?
Jewelite argued that there was no valid service as the notice of hearing had gone into the paralegal’s junk mail. The appeal was dismissed on the basis the document had also been served at Jewelite’s registered address by post.
Key provisions on service
Civil Procedure Rules 6 and 6.20 provide that a company may be served by the following means:
1. By any method permitted under CPR Part 6; or
2. By any method permitted by the Companies Act 2006.
Under Section 1139 of the Companies Act, service by post to a company’s registered address is adequate service. The general rule is that there is a presumption that, if posted, the item was received in the ordinary course of post, and the burden is on the receiving party to evidence non-receipt in order to rebut this presumption.
This presumption was applied strictly in the Jewelite case and is a timely reminder that it is crucial for businesses who have unmanned offices to have adequate measures in place to ensure that documents delivered to the office address come to the attention of the relevant person. Failure to do so may result in hearings proceeding – and even judgments being made – in that party’s absence.
Key points
Check whether documents need to be served on your business by a prescribed means and consider whether this presents any practical issues (e.g. because your offices are unmanned).
Consider making it clear that you will accept service by email during the lockdown. Many companies are currently doing so in the format of email footers (see below for an example).
Seek confirmation from opponents that service by email will be reciprocated.
Where reliance is placed on email service, provide more than one email address to be used and regularly check junk mail.
“Please do not deliver documents to our offices where these can be delivered by email instead. Where it is necessary to deliver documents to our offices, please also send an accompanying electronic version of the document to ensure that it is brought to the attention of the relevant individuals without delay”.
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