Tom Weekes QC asks when a notice is regarded as being served
At common law, a notice is served only if it is received by the recipient. But what does that mean? In particular, will a notice be regarded as being served on an individual once it has been delivered to his home address? Or will the notice be treated as served only when it comes to the recipient’s attention?
That issue was recently considered by the Court of Appeal in Newcastle Upon Tyne NHS Trust v Haywood [2017] EWCA Civ 153. It is an important issue for property lawyers: property rights are frequently exercised by serving a notice, and, in many situations, the rules about service are governed by the common law rather than by any statutory or contractual provision identifying when service is deemed to occur.
The facts
Mrs Haywood was employed by an NHS trust. The trust terminated Mrs Haywood’s contract of employment by posting a notice to her home. The notice was delivered on 26 April. At that time, Mrs Haywood was returning from a holiday in Egypt and read the notice only when she returned home the following day. The question was whether the notice was served: (i) on 26 April; or (ii) on 27 April. If service of the notice was on 27 April, Mrs Haywood would have reached the age of 50 by the time the notice expired, and, as a result, she would be entitled to a more generous pension.
Previous authorities
In the early 19th century, there were cases that considered precisely this issue. Those cases do not speak with one voice. For example, Doe ex dem. Buross v Lucas (1804) 5 Esp 153 (which was overlooked in Newcastle) decided that “the mere leaving of a notice to quit at the tenant’s house, without… proof… that it came to the tenant’s hands… is not sufficient to support an ejectment”. In contrast, in Doe ex dem. Neville v Dunbar (1826) M&M 9 (which was referred to in Newcastle), Abbott CJ said that, unless a notice to quit could be served merely by delivering it to the tenant’s home address “a landlord would have no means of determining a tenancy, if his tenant happened to be absent from his house at the time when it was necessary to service the notice”.
In Tenax Steamship Co v Owners of the Motor Vessel Brimnes (The Brimnes) [1975] QB 929, a notice to terminate a charterparty was telexed to the charterer’s office. It arrived before 6pm on 2 April. But the notice was read only the following day. Nevertheless, the Court of Appeal held that the notice was served on 2 April. Megaw LJ said:
“…if a notice arrives at the address of the person to be notified, at such a time and by such a means of communication that it would in the normal course of business come to the attention of that person on its arrival, that person cannot rely on some failure of himself or his servants to act in a normal businesslike manner in respect of taking cognisance of the communication so as to postpone the effective time of the notice until some later time when it in fact came to his attention.”
This type of issue can arise not only in relation to service at a physical address, but also in relation to service at an electronic address.
In Greenclose Ltd v National Westminster Bank plc [2014] 2 Lloyd’s Rep 169 (which was not referred to in Newcastle), Andrews J held that a notice sent by e-mail to extend the term of an interest rate hedging contract was served not when the e-mail arrived in the recipient’s inbox, but only when the e-mail was opened and read by the recipient. The judge said that “if the parties are in an ongoing trading relationship where notices are routinely served by a particular method, such as a telex or fax, it makes sense to conclude that such a notice will be served when it is available to be read or seen during normal office hours”. However, especially given that the notice related to the exercise of an option, it was “wholly uncommercial to suggest that… the parties [in this case] can be taken to have agreed that notice would be given… by a method neither party had specified, if it was not actually communicated to someone in authority at [the recipient]”.
The decision
The judges in Newcastle were divided on the outcome. Lewison LJ said that “the common-law cases all point in the same direction” and that notice is “validly given under [a] contract when a letter containing the notice actually arrives at the correct destination, whether the recipient is there to open it or not”.
The majority of the court held that the notice was served only when it came to Mrs Haywood’s attention. Arden LJ (with whose reasoning Proudman J agreed) said:
“…the authorities establish that, if a notice is physically delivered to a person’s home, it is not necessarily received by him.
“In my judgment, the position under the general law is that when a letter is shown to have been sent to a person’s last known address, and to have been delivered there (as where it is sent there by recorded delivery post, signed for and left there), the law would presume unless the contrary was shown that the party to whom the notice was addressed would have received it. But it is a rebuttable presumption… What happens in that situation is that the evidential burden shifts to that person to show he or she had not received it (it might after all have been eaten by the dog or swept away by a visiting plumber).”
That conclusion is consistent with other recent case law, in particular Freetown v Assethold [2012] EWCA Civ 1657; [2013] 1 EGLR 57, in which courts have sought to interpret rules about service in a way that increases the prospect that a notice will be treated as being served only if it has come to the recipient’s attention. After all, notification is meant to be all about the communication of information.
Nevertheless, Newcastle should not be interpreted as implying that delivery to the recipient’s address will never be regarded, in itself, as sufficient. For example, The Brimnes establishes that, where a recipient has held out commercial premises as being a reliable address for near-immediate communication, there will be no further requirement that a notice must come to the attention of the recipient.
Tom Weekes QC is a barrister at Landmark Chambers and the author of Property Notices: Validity and Service (2011), Jordans, 2nd edition
