Help - Wilkinsons: presumption of service

[safespeed]

About a couple of months ago there was a thread in here about the 'presumption of service' for posted S172 notices. Someone quoted a passage from Wilkinsons indicating that the presumption of service could potentially be challenged.

A friend just came on the phone asking about challenging the presumption of service, and I can't find the reference.

Can anyone help?

[Dwight VanDriver]

Section 172 RTA 88 was replaced with that contained in Section 21 RTA 91.

Sub Section 7 states that such a notice may be served by post.

Section 7 Interpretation Act 1978 defines under law what served means:


"Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expression "give" or "send" or any other expression is used)the, unless the contrary intention appears, the service is deemed to be effected by properley addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of the post."

Does this help?

dvd

[r32]

Have a look at this thread:

www.5ive-o.com/forum/showthread.php?t=14559

[7db]

Oh gawd, not *that* thread.

IIRC the defendent swears blind to the mags that he didn't receive the NIP, and then it's up to the other side to show that it was properly *delivered*, not posted.

Proving it was delivered is done automatically if it is *sent* recorded, but not if it is sent first class. All the usual burden of proof apply once the defence have introduced the doubt.

It does seem not quite fully tested and reliable, like an old rickety bannister -- it looks like it might work, but you'd be nervous about putting all your weight on it.

I'm sure the good burghers of 5ive-0 will be just only far too delighted if you dredge that thread up for another go. Again.

[safespeed]

Dwight VanDriver said:

Section 172 RTA 88 was replaced with that contained in Section 21 RTA 91.

Sub Section 7 states that such a notice may be served by post.

Section 7 Interpretation Act 1978 defines under law what served means:


"Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expression "give" or "send" or any other expression is used)the, unless the contrary intention appears, the service is deemed to be effected by properley addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of the post."

Does this help?

dvd

Thanks DVD...

But isn't there also a passage about the effect on the presumption of changes to the means of posting?

[jith]

7db said:

Oh gawd, not *that* thread.



It does seem not quite fully tested and reliable, like an old rickety bannister -- it looks like it might work, but you'd be nervous about putting all your weight on it.

Don't you mean an old rickety BARRISTER, 7db?

[7db]

Oh - I wouldn't lean on one of those, Jith - they sway terribly (after a couple of glasses of champagne)

[Dwight VanDriver]

Thanks DVD...

But isn't there also a passage about the effect on the presumption of changes to the means of posting?[/quote]

The Section or the Interpretation Act are not specific is the type of post i.e. Reg or R/D unlike the RTOA 88 on NOIP where first class post was added to Reg/R.D as a means to effect service.

It woukld therefore appear (wearing my flack jacket) as far as 172 goes all they have to do is prove that it was posted.

dvd

[Flat in Fifth]

7db said:

Oh - I wouldn't lean on one of those, Jith - they sway terribly (after a couple of glasses of champagne)

More like a couple of glasses Chateau Thames Embankment in the Wig and Pen.....

on the slate naturally.

[Flat in Fifth]

safespeed said:

Dwight VanDriver said:

Thanks DVD...

But isn't there also a passage about the effect on the presumption of changes to the means of posting?

The Section or the Interpretation Act are not specific is the type of post i.e. Reg or R/D unlike the RTOA 88 on NOIP where first class post was added to Reg/R.D as a means to effect service.

It woukld therefore appear (wearing my flack jacket) as far as 172 goes all they have to do is prove that it was posted.

dvd

Dons flak jacket, inserts vital organs plate, groin protector, shin pads, elbow pads, overalls, bovver boots, bone dome, gloves, lowers visor........

Surely Shirley.

One the one hand you have a sworn statement by ticket office, supported by some sort of events log, which purports to show that the device was posted. No evidence of receipt as Recorded Delivery and similar services not used.

On the other hand you have a sworn statement that no such communications received. Impossible to produce log, as in impossible to prove a non event.

If other mail problems can be cited as, for example, in my own documented cases (plural) of missing travel warrants between County Hall and Villa FiF, must be cause for reasonable doubt one proposes.

btw, Bloody slippery here in Scandinavia DVD, got wheel spin in 6th gear last night!!!!

You might very well ask what I'm doing at 6th gear speeds when its that slippery. You can ask.....

Ciao,
FiF

edited even more big trouble formatting

Edited by Flat in Fifth on Friday 9th February 15:41

[Dwight VanDriver]

.......but Fif if they made it conditional that they did personal service or a signature of receipt by post, then they would be taking away trade for the 'mafia' and the wigged ones.

Dvd

PS. Snowing here in Yorkshire by the bucketful but we don't complain......

[chrisgr31]

There have been posts on here where someone has stated that they have successfully argued that the NIP was never received, and therefore been let off. It is certainly in a thread where I have responded, and probably in the last couple of months

[7db]

DVD - are you sure it's Interpretation Act 1978 that we need here -- isn't the definition taken from the more recent Criminal Justice & Public Order Act (1994), which amends RTOA (1988) as follows:-

CJPOA said:

Service of documents by first class post

6.— <...>

(3) In section 1 of the [1988 c. 53.] Road Traffic Offenders Act 1988 (which requires warning of prosecution for certain offences to be given), after subsection (1), there shall be inserted the following subsection— "(1A) A notice required by this section to be served on any person may be served on that person—

* (a) by delivering it to him;

* (b) by addressing it to him and leaving it at his last known address; or

* (c) by sending it by registered post, recorded delivery service or first class post addressed to him at his last known address.

So making the definition of "served" part of the Act iteself, rather than needing to rely on the fall-back definition of the Interpretation Act.

My thanks to Firefly for that one in this ill-tempered and long-winded 5ive-0 thread
www.5ive-o.org/forum/showthread.php?t=8070

FiF - you're not ice-driving this week, are you, you lucky so-and-so? I'll be thinking of you in the Wig and Pen tonight...

Edited by 7db on Friday 9th February 17:35

[Dwight VanDriver]

I always understood that where a term was used then normally it is defined in the Interpretation section of that Act. If it is not there then one has to find where it is, if at all. Con and Use and Road Traffic Acts arte a prime example. If not defined that one has to use the common meaning expression.

In this case 'served' in the amended section of RTAO Act 88 is not defined for lawful purposes but is at IA.

In fact IA is mentioned in the later section of the amended 172 RTA 88 so must have relevance?.

dvd

[Elsarius]

Dwight VanDriver said:

PS. Snowing here in Yorkshire by the bucketful but we don't complain......

I wasn't complaining until I walked out for fish and chips and went AOT on an icy pavement!