Missing letter - deemed served?

[graham2022]

Hi all,

I was the defendant in a small claim and I have a hearing set for end of next month to set aside discontinuance and make a claim for costs for unreasonable behaviour (under 27.14g)

One of my arguments is that I was never sent a notice of discontinuance so wasted time/costs attending a cancelled hearing. The claimants solicitors are now claiming they sent it to me around 10 days before the hearing date (i.e. it got lost in the post). I believe this is very unlikely and it is far more likely they didn't send it (either due to human error or ignorance of the rules).

How could I play this at a hearing - as they are claiming to have sent it is it essentially deemed served and I can't realistically argue otherwise? Or could I put them to task to present proof of posting etc?

(I have plenty of other arguments regarding unreasonable behaviour but on a personal level not being informed of discontinuance was one of the most frustrating incidents!)

Thanks.

[des8]

It will be for you to prove on the balance of probabilities that the document was not received.

Sec 7 of the Interpretation Act is clear that it is for the intended recipient to prove non receipt, not for the sender to prove "properly addressing, pre-paying and posting a letter"

All you can do is to include in your WS a statement that no notice of discontinuance was received

[atticus]

deemed service does not apply.

[des8]

Doesn't CPR6.26 apply, rather than interpretation Act (my mistake!)