PROVING SOMETHING HAS BEEN POSTED: SWEAR IT TO BE TRUE

I initially read the Court of Appeal decision of Price -v- Price [2014[ EWCA] Civ with interest because it showed that the old CPR 3.9 still applied in family proceedings.  However Jon Williams pointed out that the case has an important message for all litigators about the need to prove that documents have been posted/lodged at court.

LOSING DOCUMENTS AND PROVING SERVICE/RECEIPT

There are numerous complaints about court’s losing documents.   On this blog we have:

• A first hand example of a party turning up for a costs management hearing and being told that the costs budget had not arrived. When in fact it had been received, and signed for, by the court (more than 7) days before.
• The Court of Appeal noting that a county court had lost a file for a considerable amount of time.
• A court refusing to give receipts for documents when they are delivered by hand.

Given that the law as to sanctions is only slightly ameliorated by recent changes to the rules and that the date of filing can be crucial (for costs budgeting and on the issue of whether an application is being made prospectively or retrospectively) then proving that a document was sent will remain an issue of considerable importance.

THE PRICE CASE

One of the issues in the Price case was whether a document had been sent and/or lost by the court.

Black L.J. observed:

1. Here, in my view, it should have been recognised that the issue was, putting it baldly, whether Mr Price was telling the truth when he said that he had posted the answer. It did not follow inexorably from the fact that it had not apparently arrived at the court that he had not posted it. Nor, given that his case was that he simply put it in a post box without obtaining or generating any supporting records, could it be said that the absence of supporting evidence established that he was lying. It all depended on whether he was credible and, in the absence of independent material to assist the judge, he was not in a position to assess that without hearing Mr Price give evidence in the normal way. I note Miss Edwards’ submission that the floodgates will open and the courts will be unable to find the time to hear oral evidence. I stress, however, that I do not intend this to be taken as a universal rule; my view depends on the facts of this particular case and other cases may give rise to different considerations and imperatives. Each case has to be dealt with fairly, depending on what the issues are.

The position is summarised in the short judgment of Underhill L.J.

1. I agree.  I wish to add something only in relation to para. 47 of Black LJ’s judgment.  The situation where a party asserts that he has posted a document to the Court but where it does not appear to have been received is not uncommon in all kinds of civil proceedings (including tribunal proceedings); and it is also alas not uncommon that the party has retained no independent proof of posting.  I agree with My Lady that the fair way of resolving such an issue must depend on the circumstances of the particular case; but where, as here, the party in question is before the Court in my view the right course will normally be for him or her to be required to give evidence on oath (or affirmation) – which evidence can of course then be tested by cross-examination by the other party and/or questions from the Court.  If the issue has important consequences, as it often will, it is not satisfactory that the party’s case that the document in question was posted should be rejected – or indeed accepted – without the normal process for resolving a disputed issue of fact being gone through.  I can understand the temptation for a Court dealing with the issue in the context of a case management hearing to do so without hearing evidence; but I think that the temptation has to be resisted.  Putting the party in the witness box and allowing any relevant questioning will not normally take very long; and, quite apart from being the right course in principle, it ensures that the Court appreciates that, narrow though the issue may be, it is one of fact on which a reasoned – though in most cases it can be very shortly reasoned – decision is necessary.

SO IF YOU SAY YOU POSTED IT YOU WILL HAVE TO GIVE EVIDENCE ON OATH TO PROVE IT

Consequently you may also be cross-examined.

DOCUMENTARY EVIDENCE

Needless to say documentary evidence of posting/sending/lodging is by far the best policy.