22/02/2020

Certainty of delivery of notices – Upper Tribunal on the burden of proof

38/41 CHG Residents Company Limited v Hyslop (LANDLORD AND TENANT – SERVICE CHARGES) (2020) UKUT 21 (LC)

A quick note on a Upper Tribunal (LC) appeal concerning whether services charge demands had been delivered. At first instance, the FTT had reached a decision about the reasonableness of the service charge demands, but in respect of the respondent, it held that the charges were not payable by the respondent because she had not received the demands.

The lease incorporated s.196 Law of Property Act 1925:

“(3) Any notice required or authorised by this Act to be served shall be sufficiently served if it is left at the last-known place of abode or business in the United Kingdom of the lessee, lessor, mortgagee, mortgagor, or other person to be served, or, in case of a notice required or authorised to be served on a lessee or mortgagor, is affixed or left for him on the land or any house or building comprised in the lease or mortgage….

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned by the postal operator (within the meaning of Part 3 of the Postal Services Act 2011 ) concerned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.”

 It was not in dispute that if demands for service charges were delivered either by putting them through the letterbox of the property addressed to the respondent, or by pushing them under the door of her flat, or by their being addressed to the respondent and sent to her by ordinary post, the requirements of section 196 were met.

The evidence of a director of the Freehold Management Company was:

“3. On 20 July 2015 I prepared and photographed … a set of documents to be delivered to the Respondent, including (a) a cover letter; (b) demands of payment of sums due; and (c) a tenant statement.

4. On 21 July I delivered that set of documents in an envelope with the Respondent’s address into the front door mail slot of 41 Craven Hill Gardens London, and photographed that delivery.

5. On 24 July 2015, I reprinted and delivered that set of documents, without an envelope, directly under the internal door of Flat 5 41 Craven Hill Gardens London, and photographed that delivery.

6. On 15 August 2015, I hand delivered a reminder of payment to the Respondent, however I do not recall, nor have sufficient records to assist my recall, whether this was in an envelope or not, or whether to the front door or directly to the Respondent’s door at Flat 5 41 Craven Hill Gardens London. I did not photograph that delivery.

A further demand by the managing agents in September 2015 was sent to all leaseholders by post.

The FTT, however, decided that the question was whether the documents were received by the respondent as the test was whether the FTT were satisfied that they had been received. On the director’s evidence and exhibited photographs, the FTT found that the evidence was credible and corroborated by the photograph of a hand delivering an envelope, but “we cannot identify with any certainty what documents were included in that envelope”, and an envelope put through the main communal front door cold have ended up in another resident’s pigeonhole.

On the subsequent pushing of documents under the door of the respondent’s flat, the director had said in evidence that he couldn’t recall if the documents served on that occasion were the same as those contained in the envelope on the previous occasion.

The FTT decided it was not satisfied that the demand had been received on either occasion.

The FMC appealed.

The Upper Tribunal made fairly short shrift of this part of the FTT decision.

The question was not whether the demand had been received, but whether they had been delivered in accordance with the lease. To that extent, the FTT had set the wrong question. However, to the extent the FTT had made findings on delivery, this by itself was not enough for the appeal.

The FTT had applied the wrong standard of proof.

The FTT’s references to certainty are troubling. The mere use of those words does not necessarily mean that the FTT was applying a standard of proof more strict than the balance of probabilities. As Mr van Heck says, the word “any” is important; to say “I do not have any certainty about x” might mean “I am wholly in the dark about x” and does not mean the same as “I am not certain about x”. But in context, the two references to certainty are consistent with what the FTT was actually doing. The FTT appeared to be looking for proof of receipt at a level higher than the balance of probabilities. It had no criticism to make of Mr Gream’s credibility and it accepted his evidence that he delivered documents by hand on 21 and 24 July. But it seemed to need something more than Mr Gream’s statement that he made that delivery, despite having no doubts as to his credibility, and seems to have regarded corroboration as necessary. It laid weight on the fact that Mr Gream “could not be certain” what he delivered on 24 July 2015. It appeared to require to be made certain itself. Mr van Heck says that it is inconceivable that a judge in a property tribunal would apply the wrong standard of proof.  Nevertheless that is what I find happened here, although I do not suggest that it was a deliberate or conscious choice of the wrong standard.

The evidence from the director, despite an inconsistency abut the number of demands included in the documents he delivered, was clearly enough on the balance of probabilities to establish delivery. The FTT had rejected an accusation by the respondent that the photograph as ‘staged’ and found the evidence ‘credible’.

The fact that he could not now be certain what he delivered on 24 July should not have been allowed to obscure the fact that the evidence pointed strongly to the probability of his having delivered an up to date demand and statement of account on both 21 and 24 July. It is not in dispute that if he did so the requirements of section 196 were satisfied. Mr Gream’s evidence and the evidence supplied by the copy letter and the photograph, taken together, are far more likely to be true than the respondent’s implausible accusation of bad faith and her blanket denial of receipt.

And then, in respect of the September 2015 posted demand:

It is worth noting that the respondent denied receipt of demands for the preceding service charge years in county court proceedings, but her evidence was not accepted.

It is the appellant’s case that the September 2015 demand was sent out by post on 29 September. The email of 15 July 2015 from FW Gapp indicates that the “stop” on her account had been lifted, so that she would get demands from the agents like everyone else.  Mr Gream received his – it is not the case, as the FTT said in its paragraph 31, that his statement was silent about the September demand. There is no other evidence about this delivery, but what there was outweighed the respondent’s bare denial. It was probable that the September 2015 service charge demand was delivered to the respondent by post as it was to the other lessees.

I find that the FTT’s assessment of the evidence about the delivery of the service charge demands for the two years in issue was irrational because it was not open to the FTT to make that finding on the evidence before it.

The appeal succeeded, and a finding that the demands had been delivered made.

 

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

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