A bastardy summons had been served on the defendant but he had not been properly served with a written notice indicating the date of an adjourned hearing. He sought an order for certiorari to quash the decision of the court.
Held: Where there has been no service at all then the subsequent order is irregularly obtained and one to which the defendant is entitled to have set aside as of right. ‘He [that is the clerk of the peace] sent a letter by registered post to Mr Rossi telling him the date, time and the place of the adjourned hearing; but it was returned to him unopened and undelivered. In those circumstances was the Act complied with? Did the clerk of the peace in due course give ‘notice’ to Mr Rossi? It is argued that it is sufficient to comply with section 3 (1) if he sends a registered letter to the respondent, even though it is not received by him, and known not to be received. I do not think this is correct. When construing this section, it is to be remembered that it is a fundamental principal of our law that no one is to be found guilty or be made liable by an order of any tribunal unless he has been given fair notice of the proceedings so as to enable him to appear and defend them. ‘ Denning LJ distinguished between an order regularly made and one which was irregularly made. If it was regularly made then the proper course of complaint was by way of appeal. If it was irregularly made then the proper course was not only by appeal but also by way of prerogative writ. ‘But once it appeared that the letter had been returned undelivered, then it was quite plain that he had not been given notice at all of the date, time and place of the hearing. In short, service had not been effected; and the court should not have entered upon the hearing at all.’ and ‘I would just add this: if the order had been regularly obtained (as the Divisional Court thought), then I would agree that there would be no ground for certiorari and the only remedy of Mr Rossi would be by application to quarter sessions to set aside the order made in his absence and to rehear the appeal.’ and ‘… if the letter is returned undelivered and nevertheless, notwithstanding its return, a judgment or order by default should afterwards be obtained, it is irregular and will be set aside ex debito justitiae. The order of quarter sessions here was irregular because there was no proper service and it should be set aside.’
Parker LJ said: ‘The section, it will be seen, is in two parts. The first part provides that the dispatch of a notice or other document in the manner laid down, shall be deemed to be service thereof. The second provides that, unless the contrary is proved, that service is effected on the day when in the ordinary course of post the document would be delivered. This second part, therefore, concerning delivery as it does, comes into play, and only comes into play, in a case where under the legislation to which the section is being applied the document has to be received by a certain time. if in such a case ‘the contrary is proved’, i.e., that is the document was not received by that time or at all, then the position appears to be that, though under the first part of the section the document is deemed to have served, it has been proved that it was not served in time.’
Denning LJ, Morris LJ and Parker LJ
[1956] 1 QB 682, [1956] 1 All ER 670
England and Wales
Cited by:
Cited – Beanby Estates Ltd v Egg Stores (Stamford Hill) Ltd ChD 9-May-2003
The landlord had served a notice under the 1954 Act. The tenant served a counter notice, but the question was whether he was late, or out of time.
Held: The combination of the various provisions meant that the landlord’s notice had irrevocably . .
Cited – Immigration Advisory Services v Oommen EAT 19-Mar-1997
The claimant had been ordered to pay a deposit as a condition of being allowed to proceed with the claim which the tribunal had judged to have no reasonable prospect of success. The claim was struck out after the tribunal had been wrongly told that . .
Cited – Gidden v Chief Constable of Humberside Admn 29-Oct-2009
The driver appealed against his conviction for speeding, saying that he had not been given the requisite notice within the 14 days required: ‘The notice of intended prosecution had been sent to him by first class ordinary post in circumstances where . .
Lists of cited by and citing cases may be incomplete.
Family, Litigation Practice
Updated: 22 January 2022; Ref: scu.182412