Written by Philip Nam
I was recently instructed to attend Wigan County Court in a defended Section 21 possession claim, which serves as a useful reminder of the importance of evidencing service correctly, particularly where tenants choose to defend proceedings.
Background to the Claim
The claim had been issued using the accelerated possession procedure, and on its face everything had been done properly. All of the required documents were attached to the claim form, including:
-
The Gas Safety Certificate
-
The EPC
-
The “How to Rent” guide
-
The Section 21 Notice
-
Certificates of Service confirming how and when those documents had been served
There was no procedural defect in how the claim had been started.
However, the Defendants elected to defend the claim and represented themselves at the hearing. They had also filed written defences in advance.
The Defence: Non-Receipt of Documents
The core of the Defendants’ case was simple:
They asserted that they had not received the prescribed documents and had not received the Section 21 Notice.
This immediately placed service at the heart of the dispute.
The Claimant’s Evidence on Service
The Claimant’s position was as follows:
-
The prescribed documents (GSC, EPC, and How to Rent) were said to have been served by first-class post
-
A signed Certificate of Service confirmed this, signed by an employee of the company responsible for service
The position regarding the Section 21 Notice went further:
-
It was said to have been served by first-class post
-
And also by Royal Mail “Signed For” delivery
-
Again, this was confirmed by a signed Certificate of Service
-
The Claimant also provided the Royal Mail tracking number
The Problem with the “Signed For” Evidence
Part of the Defendants’ defence was that when they checked the Royal Mail website, no tracking information was available.
I checked this myself. The Royal Mail website stated:
“Sorry, we’re currently unable to confirm the status of your item with reference [xxxxxxxxx]. Please try again tomorrow.”
This is not uncommon with Royal Mail tracking, particularly where items are not scanned correctly or where time has passed, but it proved problematic in this case.
Deemed Service and the Court’s View
At the hearing, submissions were made on deemed service, the legal principle that where a document is properly posted, it is deemed to have been delivered even if the recipient says they did not receive it.
However, the Judge was not satisfied that service had been proven.
The key issue was this:
Apart from the Certificates of Service, there was no independent evidence that the documents had actually been posted.
On that basis, the Judge was minded to strike out the claim entirely.
Avoiding Strike Out: A Second Chance
I was able to persuade the Judge to give the Claimant an opportunity to prove service properly by producing witness statement evidence, rather than striking out the claim there and then.
This leads to an important practical question.
What Must a Claimant Prove Where Service by Post Is Disputed?
In my view, the answer is straightforward.
The Gold Standard: Certificate of Posting
Where documents are served by post, there is one piece of evidence that is extremely difficult to challenge:
A Certificate of Posting from the Post Office
This confirms that the item was physically handed over to Royal Mail for delivery on a specific date.
If a Certificate of Posting can be produced, the law on deemed service is likely to apply, even if the tenant insists the document was never received.
What About “Signed For” Post?
“Signed For” delivery can be helpful, but it is not without risk.
Additional evidence that may assist includes:
-
Proof of purchase of the postage
-
Royal Mail confirmation emails, particularly where postage is purchased online
That said, modern Royal Mail practices complicate matters. “Signed For” items can now be:
-
Purchased online
-
Labels printed at home
-
Posted directly into a letterbox without attending a Post Office
Royal Mail will usually provide an email confirming purchase. While this is not definitive proof of posting, it would be unusual for postage to be paid for and the item never sent.
Nevertheless, this type of evidence is inferior to a Certificate of Posting and may not always satisfy a sceptical court.
Key Takeaway for Landlords and Agents
If you are serving documents by post, particularly documents that underpin a Section 21 notice, you should:
-
Always obtain and retain a Certificate of Posting
-
Treat Certificates of Service as supporting evidence, not the primary proof
-
Be cautious about relying solely on “Signed For” tracking information
Where service is challenged, the court will expect clear, independent evidence that the documents were actually posted.
This case serves as a reminder that even where everything appears correct on paper, proof of service can make or break a possession claim.
Get in touch on 0151 230 8931 or philip@whitecollarlegalandadmin.com