In contested possession claims, many tenants require their landlord to prove that the relevant notice, usually the notice seeking possession, was duly served on them. To prove service, most landlords seek to rely on the express provisions of the tenancy agreement as regards service of documents on the parties to the agreement. In Khan and another v D’Aubigny [2025] EWCA Civ 11; [2025] PLSCS 15, a novel question arose: namely, whether section 7 of the Interpretation Act 1978 could be relied on when a statutory provision required a document to be served or given to someone, but the statutory provision did not expressly refer to that act being done by post. Further, the Court of Appeal was also asked to determine whether an energy performance certificate, gas safety certificate, How to Rent booklet, or a covering letter enclosing the same, could be described as “notices”.
Key points
- Section 7 of the Interpretation Act 1978 can only be relied on to prove deemed service of a document if the statutory provision requires service by post
- A “notice” is formal written notification of something that is needed to be given for a legal purpose and/or that affects the parties’ legal rights
The statutory provisions
Section 7 of the 1978 Act 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”.
Under section 21(1) of the Housing Act 1988, a landlord of a tenant under an assured shorthold tenancy agreement cannot recover possession of the property unless they serve notice on the tenant in writing giving them not less than two months’ notice of their intention to recover possession.
By virtue of sections 21A and 21B of the 1988 Act, a landlord is prohibited from serving a section 21 notice if they have failed to comply with their prescribed legal requirements: namely, providing the tenant with the statutory prescribed information, which includes copies of the EPC, GSC and booklet.
The problem
In 2018, Kameel Khan and Julia Randell-Khan granted Elena D’Aubigny a fixed-term AST of a flat in Pitt Street, London, W8. Under clause 13.2.1 of the tenancy agreement, any notice sent to D’Aubigny under or in connection with her tenancy would be deemed to be properly served if sent by first class post to the property.
The Khans sought to regain possession of their property. On 17 March 2020, they served notice on D’Aubigny pursuant to section 21 of the 1988 Act seeking possession. At trial, D’Aubigny argued the section 21 notice was invalid because the Khans failed to serve her with the EPC, GSC and booklet. The Khans argued all of the requisite documents were duly served by their solicitor by first class post and recorded delivery on 3 May 2020.
At first instance and on appeal, the Khans succeeded in their claim for possession. It was found the use of the words “serve”, “give” and “send” in section 7 of the 1978 Act should be interpreted to be used as substitutes for the words “served by post”. Accordingly, by using the word “given” in sections 21 and 21B of the 1988 Act, parliament intended that the relevant parts of the 1988 Act authorised any document to be served by post.
Additionally, both the trial judge and appellate court found the word “notice” encompassed any document required by law to be given before a section 21 notice could be served. Consequently, clause 13.2.1 of the agreement could be relied on by the Khans to prove deemed service of the documents. D’Aubigny appealed to the Court of Appeal.
Return to sender
On the issue of whether section 7 of the 1978 Act could be relied on by the Khans to prove deemed service of the EPC, GSC and booklet, the Court of Appeal found that it could not. Section 7 of the 1978 Act was concerned with the effect of a statutory provision that authorised service, including the giving or sending of a document by post. It was not applicable to one that merely referred to the giving of a document, without any reference to this being done by post. Such a statutory provision neither required nor authorised service by post.
What is a notice?
In determining whether the EPC, GSC, booklet or the covering letter enclosing the same were in effect notices served “in connection with” the tenancy agreement, as required by clause 13.2 of the agreement, the Court of Appeal was robust in finding they were.
In defining what amounted to a notice, the Court of Appeal was cautious in its approach. It observed that a “notice” was, in general, a formal written notification of something. In the present case, the covering letter was the formal notification by the Khans to D’Aubigny of the information contained in the documents that was given in connection with their relationship of landlord and tenant. The documents were required for a legal purpose and affected the parties’ legal rights because the Khans were prohibited from serving a section 21 notice if they failed to give D’Aubigny the same.
Elizabeth Dwomoh is a barrister at Lamb Chambers
