Sheriff Court case concerning the competency of service of a calling up notice under the Conveyancing and Feudal Reform (Scotland) Act 1970.
After having failed to find Mr Gallagher, Sheriff Officers instructed by Santander, purported to serve the notice on Mr Gallagher by putting it through his letter box. Santander sought to argue that service in this way satisfies s19(6) of the 1970 Act which says:
"For the purposes of the foregoing provisions of this section, the service of a calling-up notice may be made by delivery to the person on whom it is desired to be served or the notice may be sent by registered post or by the recorded delivery service to him at his last known address, or, in the case of the Lord Advocate, at the Crown Office, Edinburgh, and an acknowledgment, signed by the person on whom service has been made, in conformity with Form C of Schedule 6 to this Act, or, as the case may be, a certificate in conformity with Form D of that Schedule, accompanied by the postal receipt shall be sufficient evidence of the service of that notice; and if the address of the person on whom the notice is desired to be served is not known, or if it is not known whether that person is still alive, or if the packet containing a calling-up notice is returned to the creditor with an intimation that it could not be delivered, that notice shall be sent to the Extractor of the Court of Session, and shall be equivalent to the service of a calling-up notice on the person on whom it is desired to be served."
Santander referred to the unreported decision Household Mortgage Corporation plc-v-Diggory (1997) in which it was found that physical delivery to the debtor was not required where service by recorded delivery post was employed.
However, Sheriff Mackie found that Santander's calling up notice had not been competently served. In terms of s19 (6) service can be made:
- by delivery in person (which means the creditor has to place the document in the hands of the debtor);
- by recorded delivery at the last known address of the debtor (no personal delivery is required and, so long as the document is not returned with intimation that it could not be delivered, then it can be presumed to have been served); or
- by notice to the Extractor of the Court of Session (which refers to a situation in which the notice is valid even though the debtor knows nothing about it).
Whilst service by recorded delivery does not require that the document is physically delivered, that does not mean that alternative modes of service do not require to involve physical delivery.
Sheriff Mackie also made reference to Rule 5.4 of the Sheriff Court Rules which provides that a Sheriff Officer can serve a document by depositing it at an address after making due enquiries. She noted, however, that this only applies to official functions carried out under Act of Sederunt (Messengers-at-Arms and Sheriff Officers Rules) 1991. When serving the calling up notice, the Sheriff Officers were carrying out an extra official function (i.e. not an official function) and, as such, the calling up notice required to be served in accordance with s 19(6) of the 1970 Act.
