This is a note of a county court appeal on the issue of whether Section 7 Interpretation Act 1978 applied to the prescribed documents required to be given to the tenant before service of a section 21 notice – EPC, GSC, How to Rent Guide. This judgment is of particular interest because permission to appeal to the Court of Appeal has been given, so this will (eventually) be a matter for Court of Appeal authority.
D’Aubigny v Khan & Anor. Central London County Court, 1 December 2023. (Copy of judgment here).
Ms D’Aubigny was the assured shorthold tenant of the Khans. The Khans brought a s,21 based possession claim. Ms D’A defended on the basis that she had not received the EPC, GSC and How to Rent guide, and that in the absence of a contractual clause permitting service of the documents by post, the landlord had to prove that they had come to her attention as per Wandsworth London Borough Council v Attwell (1995) 27 HLR 536
The landlord argued that the documents had been posted, by recorded delivery and were not returned, that the tenancy agreement did contain a provision as to service by post, and that in any event, section 7 Interpretation Act 1973 applied.
Section 7 provides
“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) 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.”
The first instance Judge found that a) Section 7 applied, and b) the tenancy agreement clause about service of notices would extend to the documents.
Ms D’A appealed, arguing that section 7 only applied where an Act expressly authorised or required service by post. The Judge below had erred in construing any reference to ‘giving’ or ‘serving’ documents authorised service by post. Further, the documents were not a notice for the purpose of the contractual clause in the tenancy agreement and were not mere prerequisites to a notice.
The landlords argued that Housing Act 1988 made no reference to service by post, so if Ms D’A were right this would encompass all section 8, section 13 and section 21 notices, but that interpretation would render the words ‘unless the contrary intention appears’ pointless. Attwell concerned a notice to quit and s.196 Law of Property Act 1925, so should be distinguished.
The Circuit Judge held
Section 7 did apply. Noting the Court of Appeal in Freetown Limited v Assethold Limited (2012) EWCA Civ 1657
“It is submitted on behalf of Freetown that these provisions suggest that section 7 will at least generally apply to statutory provisions authorising or requiring the service of notices affecting land. I would accept that section 7 provides a general statutory code regarding sendings by post and that the statutory presumption is that it will apply unless a contrary intention appears.”
As a matter of statutory interpretation, the wording ‘unless the contrary intention appears’ would be robbed of any meaning, unless ‘give’, ‘send’ or ‘serve’ included or authorised doing so by post, even where not expressly required.
On the contractual clause, which read
“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 Circuit Judge held
First, notice is not defined by a capital letter which in my view, it should be if “notice” is to be confined as Mr Jones seeks to notice per se and nothing else. Secondly, if “notice” is simply confined to a notice in abstract, then there would be no purpose for the words “or in connection with.” I find that on an objective analysis those words clearly encompass the three documents in issue. Thirdly, while I accept that each of the three documents have an importance in their own right, I concur with Mr Bates that any objective construction of the clause would include any documents which are required to be served prior to a section 21 notice being valid. To hold otherwise and to descend into a debate as to whether documents or appendices such as rent statements reveals the absurdity of the construction Mr Jones seeks.
In my view, on a plain and natural reading of the entire sentence, a reasonable person would have understood the parties to have meant by the word “notice” and following words that the notice encompassed documents such as the three in question. Such a construction accords with common sense.
Appeal dismissed.
As we now know, a second appeal to the Court of Appeal has been given permission. Given the wordings of Housing Act 1988, any judgment on the application of section 7 Interpretation Act will have great importance. Given the common form of the tenancy clause on service of notices, that aspect could also be important.
I wish them luck in their appeal, the legislation was created, amended and the Statutory Instrument provided for a reason and a S21 is void without these because it is important. This is not a typical notice and it would make a mockery of the legislation, I know so many Landlords that have faked this after not serving it.
If all one had to do was post it by first class post then that would have been in the legislation, far from it not only is it required but very specific information is specified under the instrument.
https://www.legislation.gov.uk/uksi/2007/797/article/2/made
One always need to be able to PROVE something has been done, first class post proves nothing, in fact we have noticed that first class post is not being delivered to some clients for weeks on end, I am aware of a complaint to OFCOM because residents only get mail when there is a leaflet delivery. I have seen Court Orders the acknowledge first class post cannot be relied upon to deliver promptly and factored it in. Even recorded delivery has become a farce with “signed for” post being signed for by the postman, Royal Mail acknowledged this on a BBC Consumer show.
I believe this is another example of “Britain is broken” .
If after years of cases there was an issue with properly giving the PI to Tenants then Landlords would have asked for it to be changed in the Deregulation Act 2015 when other changes were made.
I am confident that a higher Appeal will be won and the Landlord will have wished that they had just done things properly, which means a proper service that is evidenced and a copy signed. Even if such an appeal failed it would be inevitable that the Government would amend the legislation to be explicit but we should not need that because it was clear that the purpose was to inform the Tenant is a provable way that they had been served with the Prescribed Information.
Otherwise the SMS from the Deposit Scheme provider would suffice or their email or their written copy of a Deposit Protection Certificate, but no, the legislation required very specific information is served and that it is signed, the idea that it could be just sent by first class post which no proof is absurd. In cases from the “specialist” eviction companies they give back the deposit and some even video cash being thrown at a Tenant and provide the Court with evidence of same.
There is no excuse, all a Landlord has to do is take the deposit, protect it online, print out the PI twice and have the Tenant sign it, it can be done in minutes, there is a process of referencing and once a Landlord decides on their Tenant, makes an offer, it is quite easy to ask for the deposit to be provided by Bank Transfer, print out the PI which is prefilled by the Scheme portal these days and a two copies of such printout be signed by all parties when the keys are GIVEN to the Tenant.
We are surely past the days when people think a clause in a contract can override the law and the intention of the legislators.
It is not that simple. The HA 1988 and the regulations do not specify the form of service (except that the How to Rent Guide can’t be given by email without the tenant’s express agreement).
Would it not be better if the reverse were the requirement. Emails cannot be lost whereas paper can be “lost”. Who wants a compacted rain forest dumped on her/him/them? Unless it is edible or re-grow.
Questions: In whose name is the deposit held? In a Savings Account? If yes, whose name(s) and who benefits from the interest earned? Apologies. for the (slight) digression.
Emails do indeed get lost, or not seen – in spam folders, or misaddressed. And not everyone has an email address (though I’ll grant you that number has reduced over the years).
Why the questions on deposits? This was not a deposit case. The answer depends on whether it is a custodial or insurance scheme that is used. You can find out for yourself on the deposit schemes websites.
It’s not just the How to Rent guide, surely? Any PI document can not be served electronically unless consent is expressly given.
No, that is not the case. It is only the How to Rent guide that specifically has to be hard copy, unless express consent to email.
Giles, what does this mean? What if the How to Rent Guide is available via a (third party or not) online system, where the tenants is forced to agree to a load of additional clauses, just to access what the landlord is obligated to provide. Not by email but by a convoluted alternative means.
The How to Rent Guide cannot be provided by such a method.
David, i agree with you.As a photographer insistent on.the truth being seen and heard I am not hesitant to use a 360° camera and audio recorders especially when finance is involved. I think that it should be a requirement. No ‘misquoting’, no allegations of ‘improper behaviour’. There use is only necessitated because we ‘know’ that Landlords, Banks (and their Staff) and the Police (interesting last 4 characters) are such Paragons of Virtue!
Apologies for disagreeing with you Giles. With emails there is the original at the source. If the owner claims to have provided the tenant with the required documentation via email then he/she/they have to produce the evidence. Also, I have found that looking at “All mail” (Gmail) will produce the evidence. Anybody who does not check their Spam and Bin folders is careless and deserves to come unstuck. Is it not the case that if the evidence is not available from either side then the matter should be dismissed with costs being attributed to the side that cannot/has not produced the supporting evidence.
Regarding the “deposits”, I have wondered about it on occasions. This was a moment to mention my curiousity. It is of no “interest” to me, but if it was any monies that “have” to hand over expecting it to be returned to me I want to know that it is earning some interest for me as it is MY money until the owner can provide evidence to prove that I have caused damages beyond acceptable/normal wear and tear. My money is not being handed over to benefit the accommodation owner by earning her/him/them interest or saving them interest charges on his/her/their mortgages/overdrafts. That brings up another question that I have regarding rents but it is not for this column.
‘Original at source’ is no different to sending recorded delivery.
You must check your spam and bin folders on a regular basis is a nonsense. Who does that? Seriously?
As for deposits, go and see. I’m not doing your basic research for you.
Sounds reasonable to me, sime solutions are the best.
A landlord can obtain an agreement with the tenant with respect to the serving of and receipt of Notices and documents. Either by post, in person on signing the AST and paying the deposit or by email at a specific address and request acknowledgement. Where no acknowledgement the LL can follow it up with a phone call, a visit to the property or a letter in the post or any combination of. But mostly landlords do not do things by the book in taking the simplest route. They don’t respect tenants as people just like themselves, but whom rent a home.
Giles, I regrettably disagree with you. Recorded and Special Delivery is a joke. Royal Mail do not deliver to a person. Royal Mail delivers to an address. Unless Royal Mail has changed its methods it will accept a signature from anybody (mis)representing her/his/themself as the Person specified as the addressee. I have experience of that. A package from the USA was delivered to my address and handed to a Person. Several days later I queried the date it was sent from the sender. I asked the Royal Mail about its delivery to me. The Manager asked the Delivery Person. I have told you the response. With the agreement I made alternative arrangements for receipt of mail. I, now, receive mail addressed to my address, scan the envelope and contents, return the contents to within the envelope and mark the envelope “RTS”, then putting it in the post. I have used computers for 40 years. They are no different to manual systems but quicker. Unless an incorrect email address is given/entered then that is where the email goes. No other intervention is possible. If anybody does not check the Spam and Bin/Trash folders regularly, they should stick to manual systems and suffer the consequences.
I am not asking for advice re deposits. I am giving an opinion and the only way I will part company with my pence. There are sayings about looking after pennies and fools being parted from their wealth. Very appropriate.
Thanks for this, but I am afraid that your personal views on service or on deposits are neither here nor there.
He has a point though about problems with “correct delivery” being to the address rather than the specific person. I heard of a tenant living in an HMO, whose landlord clearly had full access to all daily post arriving through the main outer door, who then received court papers too late to file a defence and which had clearly been opened by the landlord and stuffed into a different envelope. Had the landlord not delivered anything at all the first the tenant might have come to know of being taken to court would have been bailiffs turning up! If ‘signed-for’ services are unreliable how can a court system be based on the assumption that using Royal Mail First Class is proof of service, let alone being proof for any other important docs? Nobody would rely on sending the tenancy itself by post, would they?
Service of court documents is a whole separate issue and covered by the Civil Procedure Rules, which certainly allow for service by post. The issue in this matter is service of pre-court notices and documents.
Hi John (not Jon), Thank you. Almost described my later situation aswell. Except in my case, the real landlord (the ex-landlord’s Daughter) took the Court Documents to South Wales (in her 911) and posted them back to me in Herts. and were delivered to me as she/they with Police + tasers present tried to gain entrance and with me audio recording the activity. The Police sent them away. Me: 1; Them: 0. Briefly. Would like to tell you the whole story and hear your opinion.
I really struggle with this decision.
Freetown is not authority for the proposition that s.7 applies to the services of notices under an Act that does not authorise the service of notices by post. That was not in issue in Freetown because the Party Wall Act does authorise the service of notices by post. Moreover, “unless the contrary intention appears” refers to the deemed service provision of s.7; not whether the act authorises service by post. That is to read s.7 in a way that does disservice to English grammar.
Even if some may wish to question the quality of the respondent’s counsel’s submissions in Akhtar, the appellant’s counsel who made the concession was Philip Rainey KC. There were also a handful of other cases that (in addition to Postermobile) make the point (and were indeed referred to the Judge Elizabeth Cooke in Akthar – see Retail Dairy Co Ltd v Clarke [1912] 2 KB 388 -s.26, Interpretation Act 1889 (the predecessor to s.7) had “no application where the statute to be interpreted says nothing about service by post / Syed v SSHD [2013] UKUT 144 (IAC)).
I will await the Court of Appeal’s decision with interest.
But there is no reasoning in any of those cases either! And, happily, none are binding on the CA.