Have you been served?

Whether a notice has been validly served (or not) is often a contentious question and the answer is not always as straightforward as you might think.

The recent case of Calladine Smith v Saveorder Limited [2011] EWHC 2501 (Ch) [2012] L.& T.R. 3 shows us why.

In Saveorder, the tenant served notice claiming an extended lease in accordance with the provisions of Section 42 of the Leasehold Reform Housing and Urban Development Act 1993 (‘the 1993 Act’). The landlords’ solicitors prepared a counter notice under Section 45, but purported to serve the counter notice by post.

As a matter of law, Section 7 of the Interpretation Act 1978 provides that where a document is to be served by post then unless the contrary can be proved, service will be deemed to be effective if it can be shown that a properly addressed and pre-paid letter containing the document has been posted. Service will be deemed to happen when the document would be delivered in the ordinary course of the post.

However, in Saveorder, as a matter of fact the judge at first instance had made a determination of fact on the evidence presented that the counter notice had not been received.

The County Court had held that the landlord’s service of the counter notice had been effective, notwithstanding the fact that it had not been received, the applicable test in Section 7 of the Interpretation Act being made out. However, Section 7 states that service by post in the manner stated will be effective, ‘unless the contrary is proved.’

The High Court on appeal from the County Court held that this qualification is not limited to the determination of the time at which service is deemed to have happened, but rather extends more widely to cover the full facts surrounding the manner in which service is effected. After a detailed consideration of the authorities, the Court held that service had not been valid, where there had been a finding of fact to the effect that the notice had not been received.

Comment

Saveorder is a common sense decision and provides (without too much irony) clarity on the interpretation of Section 7 of the Interpretation Act 1978.

If it can be established as a matter of evidence that a notice has not been received, it is unlikely that a court will find that service has been valid.

The case is a salutary lesson in confirming receipt of any given notice at its destination, so as to avoid a dispute on the facts later on.

Mark Chick

7 June 2012

This note (being very general in its nature) is not a complete statement of the law in this area.  It is therefore not a substitute for legal advice from a suitably qualified professional and should not be relied upon as such. No liability can therefore be accepted for any actions based on reliance upon it.

If you require legal advice please visit www.bishopandsewell.co.uk