Deemed Service & CPR 6.26

By Nathan Foley | 8 August 2022 | Party Wall Surveyor

Serving a Party Wall Notice & CPR 6.26

One of the common questions we get asked a lot is deemed delivery with regard to CPR 6.26 which is the Civil Procedure Rules section 6.26

The reason this comes up a lot in Party Wall Matters is that we have to “serve” notices on owners & surveyors and this is usually done by 1st Class Post as per the following snippet the rules state the following

. First class post (or other service which provides for delivery on the next business day)The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or
if not, the next business day after that day.
Civil Procedure Rules section 6.26

What does this mean?

Well, simply put two days after it’s been posted it will be deemed to have been delivered as explained by the table below, this means that the statutory count downs can’t start until it would be DEEMED to have been delivered in normal service. So this is why timelines are so important and you need to make sure you are servicing at the right points.

Posted Deemed Served
Deemed Delivery Dates

It has always been said that notices for the Party Wall Act should be served using normal 1st Class Post and get proof of posting to prove it was sent on that day and rely on 6.26 for deemed delivery. All the way through my degree, training courses and professional guidance.

We understand why but this hasn’t always been an easy thing to do, sometimes service needs to happen at a time when my two local post offices are closed and my local delivery office closes by lunchtime although there is the last collection box that is collectable to 19:00, so I know it makes the cut off for postage today and should be able to be deemed delivered by 6.26 two days later, but there is no proof of delivery. There have been projects where we have had to take this chance and follow it up with a correctly served duplicate package the next working day.

Diriye Vs Bojaj and the change

Diriye Vs Bojaj [2020] EWCA CIV 1400 – has changed this and has allowed the use of signed for 1st class to be used originally the judges agreed that 1st Class Signed for wasn’t the same for deemed delivery but on appeal although upholding most of the original argument, settle several key precedents for deemed delviery including

  • Signed for 1st Class is a species of First Class posts so within CRP 6.26
  • Additionally, it meets the next day’s requirement of another service which provides next-day delivery
  • It would “make no sense” for solicitors who chose to use signed for delivery to be placed in a worse position than simply using first class post so the deemed delivery provisions still apply
  • Excluding such services from deemed service provision could allow some recipients who were being less than honest to evade legal service by refusing to sign the documents.

This confirmation from the court of appeal allows us for those rare occasions described above to use the 1st class signed for service to make sure we can prove service took place.

It is likely you’ve been sent here to access the deemed delivery table above and to understand deemed service following an enquiry but if you are looking for advice or a party wall surveyor in Kent then please get in touch.