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Anderton v Clwyd County Council, Queen's Bench Division, 25 July 2001

25 September 2001
The issues

Dyslexia – Whether deemed date of service be rebuttable.

The facts

The claimant appealed the decision of the Master and refused an application for a declaration that the claim form had been served in accordance with the rules.

The claimant brought a claim against the Council alleging that the Council had failed to identify his specific learning difficulty (dyslexia). She had been born on 7 July 1979. The claim form was issued on 5 July 2000 shortly before expiry of the primary limitation period. In September 2000 an extension of time and service of Particulars of Claim was agreed but no extension was agreed for the Claim Form. Time of service for the Claim Form expired on 5 November 2000 (CPR7.5).

The claimants solicitor gave evidence that the Claim Form had been served under cover of a letter dated Friday 3 November 2000 and evidence as to normal post room procedure of the firm. The Council’s solicitors stamped the letter received 7 November 2000, 2 days after the expiry time for service. The claimant relied on the deemed posting rule to the effect that it was deemed to have been served on Sunday 5 November 2000, since that rule did not exclude weekends and bank holidays on the calculation of time.

The decision

The deeming provision in 6.7 was a rebuttable presumption and gave way in face of evidence the actual date of service.

The clear intention behind CPR2.8 behind the reference to CPR2.8 and CPR6.7 was to indicate that weekends should be excluded from calculations of all kinds of deemed service except where express provision was made. Service was therefore deemed to have taken place on Tuesday 7 September 2000.

The Court believed it had a discretion to dispense with service but declined to exercise that discretion since this was a very old claim issued on the edge of limitation and there was no evidence that the Council had prior notice.

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