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.