Party wall – Surveyor’s award – Service – Surveyor’s award in party wall dispute sent to parties by post pursuant to section 15 of Party Wall etc Act 1996 – Appellant seeking to appeal against award – Whether appeal made outside 14-day period permitted by section 10(17) – Whether time running from date of posting of award or date of actual or deemed receipt – Application of section 7 of Interpretation Act 1927 – Appeal allowed
The appellant and the respondent owned adjoining properties. A party wall dispute arose between them in connection with development work that the appellant proposed to carry out to its property; each party accordingly appointed a surveyor, who selected a third surveyor to make an award pursuant to section 10(1) of the Party Wall etc Act 1996. The third surveyor sent his award to the appellant by post, as permitted by section 15 of the 1996 Act. The appellant sought to appeal that award to the county court.
The respondent applied to strike out the appeal on the ground that it had not been lodged within 14 days of the date of the award, as required by section 10(17). An issue arose as to whether time ran from the date when the award was posted or the date when it was received or deemed to be received. The appellant contended for the latter position but that contention was rejected in the county court and the appellant’s appeal was struck out accordingly.
That decision was subsequently upheld in the High Court: see [2012] EWHC 1351 (QB); [2012] 2 EGLR 80; [2012] 33 EG 44. The judge held that, on a proper construction of section 15, a surveyor’s award was served when consigned to the post. She took the view that the provisions of section 15 showed a “contrary intention” so as to exclude the application of section 7 of the Interpretation Act 1927, under which service would otherwise have occurred on receipt or deemed receipt. In reaching that decision, she considered herself to be bound by the decision of the Court of Appeal in Webber (Transport) Ltd v Railtrack plc [2003] EWCA Civ 1167; [2004] 1 EGLR 49; [2004] 14 EG 142, concerning the provisions of section 23 of the Landlord and Tenant Act 1927. The appellant appealed.
Held: The appeal was allowed.
Section 7 of the Interpretation Act 1927 provided a general statutory code regarding sendings by post. It altered the common law rule, which required receipt to effect service, by maintaining the requirement for receipt but deeming such receipt to take place when the letter would be received in the ordinary course of the post. There was a statutory presumption that section 7 would apply unless a “contrary intention” appeared. In deciding whether a contrary intention appeared in section 15 of the 1996 Act, it was necessary to imagine that section 7 was about to be written into that Act and then ask whether section 15 created, either by its express language or by necessary implication, a situation where section 7 would be incompatible, in the sense of contradictory or inconsistent. The correct answer was that it did not.
Everything about the language of section 15 pointed in the direction of service taking effect on receipt. First, that was the common law rule, against which any statutory language fell to be measured. Further, section 15 spoke of “service”, which prima facie, as a matter of language, pointed to receipt; that was also emphasised by the requirement for service “on a person”, since it was not natural to speak of serving a document on another person long distance. Moreover, the alternative method of service by delivery to someone “in person”, under section 15(1)(a), would involve receipt by that person. Against the background of the nature of service in general, or in the context of the rest of section 15(1), section 7 was there to make plain that, whether the expression used was “serve”, “give, “send” or anything else, receipt remained the dominant concept, albeit that there was a deemed receipt subject to proof otherwise. Accordingly, nothing in the express language of section 15 of the 1996 Act suggested that section 7 was incompatible in such a way that a “contrary intention” appeared.
Nor was there any implied exclusion of section 7 by section 15 of the 1996 Act. The fact that sending by post was one of the primary methods of service did not mean that service was to be deemed to take place at the time of sending. Where the other primary methods contemplated service on the person to be served, there was no reason why sending by post should be understood as involving something short of that equivalent.
Any other result would be unreasonable, since it would not conform with the common law, the rest of section 15(12) or the obvious intent of section 7 to provide the dominant presumption unless the contrary intention appeared. It would also be unfair if a notice were deemed to be served even where it was established not to have been received, or not to have been received in time. The short time limits of 14 days to be found in section 19(17) and elsewhere in the 1996 Act could be seriously eroded if time were to commence with the time of posting rather than with the time of receipt.
The court was not bound to adopt the contrary view by the jurisprudence on section 23 of the Landlord and Tenant Act 1927, which concerned provisions in different terms, in a different statute, and which had largely proceeded without any consideration of section 7: Webber distinguished.
Tom Weekes (instructed by The Chancery Partnership) appeared for the appellant; David Nicholls (instructed by Greenwood & Co) appeared for the respondent.
Sally Dobson, barrister
