On 17 January 2025 the Court of Appeal (“CA”) handed down judgment in a case concerning deemed service of documents relating to a tenancy. The case is notable for the consideration that Nugee LJ gave to, what might be considered, simple concepts, which had previously escaped detailed consideration – even commenting in relation to one issue that “…the very simplicity of the point to my mind makes it quite difficult”.
Facts of the case
The Defendant/Appellant (the “Tenant”) was the Claimants’/Respondents’ (the “Landlord’s) tenant of a residential property pursuant to an Assured Shorthold Tenancy.
The Landlord sought to end the tenancy by use of the S21 procedure. In compliance with the pre-conditions, its solicitor sought to serve upon the Tenant the Energy Performance Certificate, Gas Safety Record and How to Rent Booklet (the “Documents”) by posting them to her on 3 March 2020. On 17 March 2020 the Landlord sought to serve on the Tenant the S21 notice, again by post.
The Tenant accepted that she had been served with the S21 notice itself, but not the Documents which the Landlord claimed had been sent to her 14 days previously. Accordingly, the tenant’s argument was that the S21 notice, though physically received by her, was invalid due to non-compliance with pre-conditions.
The matter passed through the first instance decision and then an appeal (both of which found in the Landlord’s favour), before a further appeal came to the CA
S7 Interpretation Act 1978
The Landlord’s first argument was based on the above, which provides that:
“Where an Act authorises or requires any document to be served by post (whether the expression “served” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly 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 post”.
It was accepted that none of the statutory provisions, which required the Documents to be given to the Tenant, made mention of service by “post”. Accordingly, the CA noted that “The question is whether [S7 Interpretation Act 1978] applies where a statutory provision requires a document to be given or provided to someone but does not expressly refer to that being done by post”.
The Landlord asserted “…the statutory provisions…permitted the giving of the documents by post; thus although they did not “require” the documents to be served by post, they did “authorise” them to be served by post.” S7 being engaged, argued the Landlord, the addressee’s claim that she had not received the documents did not constitute “the contrary” being “proved”. More was required on this front than a simple, bald assertion.
In response, the Tenant argued that S7 applies only if a statutory provision expressly requires service to be by post, or it expressly authorises service by post.
Significant time was given to this issue but, in the end, the CA found in favour of the Tenant on this point. In particular, it was found that “the statutory provision must…refer to serving (or giving, sending, etc) a document by post. I do not consider that it is applicable to one that simply refers to giving a document, without any reference to this being done by post; such a statutory provision neither requires nor authorises service by post, even though I accept that it does not prohibit it”.
Ground 2: Clause 13.2 of the tenancy agreement
There was an express provision in the tenancy agreement dealing with service, upon which the Landlord also sought to rely. The wording was as follows:
“Any notice sent to the tenant under or in connection with this agreement shall be deemed to have been properly served if… sent by first class post to the property”.
The Tenant sought to argue that the Documents were neither “notices”, nor that they were sent “under or in connection with” the tenancy agreement.
The CA had no hesitation in dismissing the second point, stating that it was “…plain that [the Documents] were sent “in connection with” the tenancy agreement. It was only because [the Tenant] was (or was to be) the tenant under the tenancy agreement that they had to be given to her at all”.
The first point was not so straightforward. The Tenant pointed to clause 5.5 of the tenancy agreement which stated that “The tenant shall send to the landlord a copy of any notice or other communication affecting the property…” as an argument that not all documents affecting the property were to be considered as “notices” for the purposes of the tenancy agreement.
The Landlord argued that this was an overly technical distinction, and suggested that the definition of “notice” “…would include any document which either of them might need to give to the other for some legal purpose”.
The CA sided with the Landlord, first stating “The concept of a notice therefore does not depend on the word [notice] itself being used”.
Though it did not seek to provide a definitive definition of “notice” it commented that “…it seems to me that in general a notice is simply something that notifies the recipient of something. To that should…be added two things. First, that “a notice” is…understood as referring to a notice in writing… . Second…the notification has to be for some formal purpose…”.
Moreover “In the case of the tenancy agreement… I consider that a notice would include anything in writing by which [the landlord or tenant] formally notified the other of something in their capacity as landlord and tenant respectively”.
As such, clause 13.2 of the tenancy agreement applied to the Documents. Consequently, the CA relied on the first instance judge’s finding that the letter enclosing the Documents “Was sent by first class post to the flat… was deemed to have been received on the second working day after posting. This deeming provision, unlike that in S.7 IA 1978, does not contain any provision enabling it to be rebutted by proof to the contrary”, thereby dismissing the appeal.
Item 3 – the position in the absence of deemed service
Having already found in the Landlord’s favour, there was no obligation on the CA to consider matters further, though it decided to do so in evaluating the common law presumption in relation to the sending of documents by post.
The Landlord stated that its solicitors had served on the Tenant the Documents by first class post and recorded delivery. It provided a copy of the solicitors’ covering letter, the solicitors’ Royal Mail book and the stickers giving reference numbers in respect of the recorded delivery letter. Moreover, the landlord’s solicitors had confirmed that neither letter had been returned, even though it was unable to provide signed receipt for the recorded delivery letter.
The Tenant’s evidence was a bare denial of having received the letters enclosing the Documents.
The arguments on this point were similar to what might constitute “proof to the contrary”, needed to rebut deemed service of a document to which S7 IA 1978 applied. The Landlord asserted that an addressee “…had to do more than say they never got the letter, and come up with some explanation as to why not… for example… evidence that other documents in the block had gone missing, or that there was a problem with the post in that part of London or that the porter was known to be unreliable or the like”.
The CA sided with the Landlord commenting, interestingly, that “…even without the benefit of S7 IA 1978 there is a rebuttal presumption at common law to similar effect”. As a comparison of the presumption of service provisions of S7 and the common law, and the evidence required by the addressee to rebut that presumption, Nugee LJ commented “I cannot for present purposes see any material distinction between the two exercises”.
Birketts’ view
As to S7 IA 1978, matters are clear. That section cannot apply unless the statutory provision, which caused the document in question to be served, specifically mentions service by post. That said, S7 seems to add nothing to the, wider, common law presumption of service.
The discussion of the definition of “notice” is interesting. Of course, the reference to “notice” arose from a provision of the tenancy agreement, rather than a statutory provision, and will not be applicable to all matters.
Also interesting is the discussion as to presumption of service if documents are posted, and the extent to which it falls on the tenant to prove that the document was not received – not just making a bare denial.
Given the examples given by the Landlord’s representative, it is entirely possible that, instead of baldly asserting non-receipt of post, tenants will now make the almost-as-bald assertion that they did not receive post and that “other documents in the block had gone missing… or that the porter was known to be unreliable” and so on.
Though the Landlord was successful, and the judgment should provide some comfort to any person serving documents via post, it is noteworthy that the landlord sought to require the tenant to leave by mid-2020. The CA’s judgment was not delivered until 4½ years later, and the costs that must have been incurred would have been eye-watering. All this time and expense over what the Landlord was, undoubtedly, expecting would be a simple procedure.
With that in mind, the comments made in respect of item 2 are the most telling – landlords should seek to avail themselves of express provisions whereby service is deemed when the document is posted, without the addressee being given the option of proving that the document was not actually physically received. With the benefit of hindsight the contractual, deemed service provision could have been drafted to refer to any correspondence sent to the Tenant by the Landlord, as opposed only to “notices”, thereby removing argument/costs on that issue.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at January 2025.