D’Aubigny v Khan & Anor (2025) EWCA Civ 11 (Not on Bailii yet, a copy of the judgment is here.)

We saw this case in the County Court. This is the Court of Appeal judgment. The central issue was whether service by post of a gas safety certificate, EPC and How to Rent Guide was deemed service under i) Section 7 Interpretation Act 1978, ii) the tenancy agreement, or iii) otherwise. The circumstances were that the tenant denied receipt of the documents, such that a subsequent section 21 notice, which was received, was invalid.

Section 7 Interpretation Act says

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 question was whether the Housing Act 1988 and the relevant regulations (AST Regulations, EPC regulations and Gas Safety Regulations) authorised or required service by post.

It was clear that the HA 1988 and regulations did not require service by post. They did not say anything about how the documents were to be ‘given’ (a synonym for served) to the tenant (save that the How to Rent must be in hard copy unless expressly agreed otherwise).  This would certainly permit service by post. But did it amount to ‘authorising’ service by post?

After some consideration, the Court of Appeal found that it did not.

What s. 7 IA 1978 is concerned with (and what s. 26 IA 1889 was concerned with) is the effect of a statutory provision that refers in terms to service “by post”. It does not matter whether the word “serve” is used or some other expression such as give or send or anything else to like effect; but the statutory provision must in my judgement 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. The statutory provisions in question here are all of this type, and it follows that in my view s. 7 IA 1978 does not apply to them.

So, the deeming provision of section 7 IA did not apply. On that basis alone, while the documents could be served by post, it would be necessary for the tenant to have received them for service to have taken place.

However, the tenancy agreement contained a clause stating

13.2 Any notice sent to the Tenant under or in connection with this agreement shall be deemed to have been properly served if:
13.2.1 sent by first class post to the Property; or
13.2.2 left at the Property; or
13.1.3 sent to the Tenant’s fax number or email address stated in the Parties clause.

Ms D’Aubigny argued that the documents (How to Rent, EPC, GSC) were not notices, and were under or in connection with the tenancy agreement, so not caught by this clause.

The Court of Appeal disagreed. Firstly, the documents were ‘in connection with the tenancy agreement’.

Mr Westgate said that the documents were not sent “under” the tenancy agreement, which did not in fact refer to any of them, but were sent under the relevant statutory provisions. That I accept. But I think it plain that they were sent “in connection with” the tenancy agreement. It was only because Mrs D’Aubigny was (or was to be) the tenant under the tenancy agreement that they had to be given to her at all.

Whether the documents amounted to ‘notices’ was less straightforward. The Court of Appeal gave a general view (though not definition) of what a notice might be.

So what is it in general terms for a document to be a notice? I do not intend to attempt to give a comprehensive definition because this is always a difficult and risky thing to do; but it seems to me that in general a notice is simply something that notifies the recipient of something. To that there should no doubt be added two things. First, that “a notice” is I think generally to be understood as referring to a notice in writing, and certainly so in clause 13 which refers to “Any notice … sent”; as Mr Westgate submitted, that is to be contrasted with “notice” more generally which need not be in writing. Second, that the word “notice” has an air of formality about it. An e-mail telling a friend that I intend to go to Paris next week would scarcely be called a notice, but if an employee were employed in a job which required them to tell their employer if travelling abroad, then such an e-mail might more reasonably be called a notice of intended travel. So we can perhaps say that a notice is a formal written notification of something. By that I do not mean to suggest that a notice has to be in any particular form or use any formal language: a text from a tenant to a landlord complaining that the boiler has stopped working and the roof leaks could quite reasonably be regarded as the tenant giving the landlord a notice of disrepair for the purpose of the landlord’s repairing covenant. What I mean is that the notification has to be for some formal purpose; and in the case of a landlord and a tenant, I think that means in connection with their relationship of landlord and tenant.

In the present context, while the documents might have an independent existence, the letter enclosing them could be said to be a formal notice of the information contained in the documents.

But this does not to my mind affect the fact that the purpose of the letter sending them to Mrs D’Aubigny was to notify her of the content of those documents. It is as if the letter had stated: this is to notify you that the energy performance of the Flat has been certified as on the enclosed EPC; this is to notify you that the result of the latest gas safety inspection was as recorded on the enclosed copy of the GSR. The letter was in my view a formal notification by the Khans to Mrs D’Aubigny of the information contained in the documents in connection with the relationship of landlord and tenant between them.

In addition, the documents could be said to affect the parties’ legal rights, in relation to the section 21 notice, and were given for a legal purpose.

So, they fell under clause 13.2 of the tenancy agreement and service by post was deemed service. The appeal failed on that ground.

However, the Court of Appeal went on to consider the position at common law, and also how far a supposed receipient of a notice was required to advance positive evidence of the lack of receipt.

On the latter, the Court of Appeal did not accept that there was a requirement to advance positive evidence. It was potentially sufficient to simply deny receipt, if the court was satisfied, on the balance of probabilities, that this was credible evidence.

It seems to me that all that Morgan J meant by saying that it was not enough simply to assert that someone did not receive the letter, was that, as with any other finding of fact, the Court was not obliged to accept such an assertion at face value but could assess whether to accept it by reference to all other relevant facts and the Court’s evaluation of the witness’s credibility and reliability. Mr Bates submitted that the addressee of a letter had to do more than say they had never got the letter, and come up with some explanation as to why not – they might for example be able to adduce 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. But I think it clear from the passage I have cited from Morgan J – and even more so from the remainder of his judgment at [27]-[33] where he considers various authority – that he did not consider that it was necessary for the addressee to lead positive evidence as to what had happened to the letter. All he needs to prove is that it was not served on him. And since service as a matter of general law requires receipt (see above), that means that all he needs to prove is that he did not receive it.

On the common law position, the Court of Appeal set out the case law establishing that a notice sent by post engages a rebuttable presumption that it has been received, and a stronger one if sent registered, assuming that the letters had not been returned. This was broadly to the same effect as section 7 IA – deemed service unless ‘the contrary is proved’.

Comment

As you were, then. While section 7 IA deemed service provision may not apply, the common law position still will – with a rebuttable presumption of service. That said, having clear provisions as to service of notices in a tenancy agreement is obviously a good idea (for both parties, as tenants serve notices too), because the ‘rebuttable presumption’ may come down to the court’s view of context and witness credibility at trial.