It is frequently the case in credit hire litigation, that an issue arises as to whether correspondence that is said to have been sent, was actually received. It can be of the utmost importance to establish whether that was so, in for example an application to set aside default judgment or to establish whether an effective notice was given under section 152 of the Road Traffic Act 1988.
This can be a surprisingly hard point to establish: many of those working in firms of solicitors advancing claims for credit hire will be dealing with hundreds of files and will have no personal recollection of whether a letter was actually sent. Part of the evidential gap can be filled by giving evidence of the system that will undoubtedly exist for the sending of correspondence: how it comes to be written, sent out and dispatched from the Post Room and how a copy came to be placed on a solicitor’s file.
Not infrequently, an insurer will point to the corresponding absence of the letter (allegedly) sent on its own file: the insurer tasked with proving the negative of non-receipt will in turn be able to give evidence as to how post is dealt with, within its organisation and how it will (usually) be scanned to an appropriate file. The insurer will then ask the court to draw an inference, that whether the letter was sent or not, it was certainly not received.
How is a court to resolve this conundrum? Particularly when faced with the he said/she said dichotomy posed by the witness evidence on dispatch and receipt? The answer can sometimes lie in the existence of the presumption of regularity which applies to such a scenario. The presumption of regularity is no more than a rebuttable presumption of fact in this context, but can be usefully deployed to fill an evidential gap on the receipt of correspondence. The conflicting inferences that the court is asked to draw by the parties are (i) that the letter was sent so it must have been received versus (ii) there is no copy of the letter on the file therefore it must not have been received.
This can be crucial when, for example a conclusion that no section 152 notice was given would render a judgment worthless, due to the inability to enforce it against an insurer. There are useful statements of the application of the presumption in the case law. See in particular the judgment of Roch LJ in the case of Desouza v Waterlow [1999] RTR 71 where he noted:
If an insured is to rely on section 152(1)(a) then he has to plead the absence of notice in his defence. That is Baker v. Provident Accident & Whitecross Insurance Co. Ltd [1939] 2 All E.R. 690 . However, what amounts to notice of the bringing of proceedings must, in my judgment, depend on the facts and circumstances of each particular case. Here the evidence was that the plaintiff sent the letter of April 24, 1991 and had the conversation of April 30. That evidence was not contradicted. The presumption that events occur as they should means that the judge and this court should accept that the letter did arrive at its destination (emphasis added).
A fuller exposition of this presumption arises in a decision of the United States Supreme Court of Rosenthal v. Walker 111 U.S. 185 (4 S.Ct. 382, 28 L.Ed. 395) where it is known as “the mailbox rule”. In that case the Supreme Court stated:
The rule is well settled that if a letter properly directed is proved to have been either put into the post-office or delivered to the postman, it is presumed, from the known course of business in the post-office department, that it reached its destination at the regular time, and was received by the person to whom it was addressed. Saunderson v. Judge, 2 H. Bl. 509; Woodcock v. Houldsworth, 16 Mees. & W. 124; Dunlop v. Higgins, 1 H. L. Cas. 381; Callan v. Gaylord, 3 Watts, 321; Starr v. Torrey, 2 Zab. 190; Tanner v. Hughes, 53 Pa. St. 289; Howard v. Daly, 61 N. Y. 362; Huntley v. Whittier, 105 Mass. 392. As was said by GRAY, J., in the case last cited. ‘the presumption so arising is not a conclusive presumption of law, but a mere inference of fact, founded on the probability that the officers of the government will do their duty and the usual course of business; and, when it is opposed by evidence that the letters never were received, must be weighed with all the other circumstances of the case, by the jury in determining the question whether the letters were actually received or not.’
It is rare in the County Court that points of the law of evidence arise in civil claims and rarer still that one can usefully cite American law: but in this context the law on presumptions can sometimes be successfully deployed to tip the evidential balance in one’s favour.