Judge’s opinion on questions raised in special case stated by agricultural arbitrator — Important points on construction of section 70(2) of the Agricultural Holdings Act 1948 and on service of notices — Section 70(2) provides that claims of the kind mentioned in section 70(1) shall not be enforceable ‘unless before the expiration of two months from the termination of the tenancy the claimant has served notice . . . of his intention to make the claim’ — Held, on a point frequently discussed but not previously decided in a reported decision, that section 70(2) is satisfied if notice is served before a date which is two months after the termination of the tenancy whether it is served before or after that termination — It is a sufficient specification for a notice under section 70(2) to state an intention ‘to claim compensation under section 58 of the above Act for general deterioration of the holding’ — However, a statement of intention to serve a notice is not itself a notice — A single notice was held in the present case to satisfy both section 58 and section 70(2), in respect of the section 58 claim, the contrary view expressed in Woodfall not being adopted — Points on section 92 of the 1948 Act and section 7 of the Interpretation Act 1978 discussed — Presumption as to service of notice rebutted by proof of non-receipt — R v County of London Quarter Sessions Appeal Committee, ex parte Rossi and obiter dictum by Megaw LJ in Re Poyser and Mills’ Arbitration discussed — Provision in section 92(3) that service of notices on an agent responsible for control of management or farming is due service does not prevent a tenant from authorising someone else to receive notices on his behalf — Nor does fact that tenant has appointed a person as agent to receive notices preclude service on tenant personally
This was a
special case stated by the arbitrator, Mr Michael J Pritchard, chartered
surveyor. It related to an agricultural holding at Ty Rhos, New Quay, Dyfed, of
which the landlord was Lady Hallinan and the outgoing tenants were Mr W M Jones
and Mrs H G Jones. The arbitration related to claims for compensation made by
the landlord on the termination of the tenancy, which was an annual Michaelmas
tenancy commencing on September 29 1934. The tenancy was terminated by the
tenants.
Graham J
Jones, solicitor, of Morgan, Bruce & Nicholas, of Cardiff, appeared on
behalf of the landlord; D M Evans (instructed by David James & Co, of
Aberystwyth) represented the tenants.
Giving judgment,
MR PETER LANGDON-DAVIES said: This is a special case stated by an arbitrator
under para 24 of Schedule 6 to the Agricultural Holdings Act 1948.
The holding
concerned is Ty Rhos, New Quay, Dyfed, which is owned by Lady Hallinan. Until
September 29 1982 the holding was let to Mr and Mrs Jones, but on that date
they duly terminated the tenancy.
The
arbitration arose because the landlord wished to claim from the tenants
compensation for deterioration of particular parts of the holding under section
57 of the 1948 Act, compensation for general deterioration under section 58,
and damages for breach of the covenants of the tenancy.
Before the
arbitrator it was contended on behalf of the tenants that no such claim was
enforceable because the landlord had failed to serve notice of her intention to
claim such compensation as required by section 70 of the 1948 Act.
Section 70(1)
provides:
Without
prejudice to any other provision of this Act, any claim of whatever nature by
the tenant or landlord of an agricultural holding against his landlord or
tenant, being a claim which arises —
(a) under this Act or any custom or agreement;
and
(b) on or out of the termination of the tenancy
of the holding or part thereof,
shall, subject
to the provisions of this section, be determined by arbitration under this Act.
The landlord’s
claims against the tenants in the present case are claims which arise under the
Act and on or out of the termination of the tenancy and are accordingly subject
to this requirement.
Section 70(2)
then provides:
No such claim
as aforesaid shall be enforceable unless before the expiration of two months
from the termination of the tenancy the claimant has served notice in writing
on his landlord or tenant, as the case may be, of his intention to make the claim.
Four separate
documents are now relied upon by the landlord as satisfying this requirement.
Although all these documents were in evidence before the arbitrator, two only
were relied upon by the landlord at that stage. The statements of fact and the questions
of law contained in the special case as stated by the arbitrator accordingly
refer only to these documents.
Before this
court the landlord’s solicitor, having given due warning to the tenants’
solicitors, sought leave to rely on the other two documents which were not
referred to in the special case. I was told that the parties agreed as to the
text of these documents and that they were in evidence before the arbitrator.
They also agreed certain facts as to their service to which I shall return later.
Counsel for the tenants also told me that he, too, wished the court to give its
opinion as to whether those documents on the agreed facts satisfied the
requirement of section 70(2).
This court has
power under the County Court Rules, Order 41 rule 3(5), to remit the case to
the arbitrator for restatement or further statement. It seems to me, however,
completely pointless to remit this case to the arbitrator in order that he
should find facts on which the parties are agreed and state further questions which
clearly arise from those facts and which both parties now want answered. I
accordingly decided, with the full consent of both parties, to deal with this
case as if the arbitrator had found the facts which are now agreed and as if he
had asked the questions which the parties now want answered.
In order to
make the position clear the parties have drawn up and I have approved a
document which will be annexed to the order of this court showing the
amendments and additions to the case as originally stated which are necessary
to give effect to that agreement. In approving these amendments I intend no
disrespect to the arbitrator. He stated a case raising the questions he was
asked to raise. Following the correct procedure, he submitted that case in
draft to the parties before signing it and neither party raised any objection
to its form. Any confusion which has arisen in this case is not the fault of
the arbitrator.
I will deal
with the documents relied upon by the landlord in date order. The first two are
those which the landlord relied upon for the first time before this court.
These two documents have one characteristic in common. They were both served
before the termination of the tenancy. This raises a question of the true
construction of the words ‘before the expiration of two months from the
termination of the tenancy’ in section 70(2).
For the
tenants it is argued that these words mean within the period of two months
commencing with the termination of the tenancy and that any notice served
before that date is accordingly invalid. Mr Evans, who appeared for the
tenants, submitted that there is a clear distinction made in the Act between
notices which are to be served before the termination of the tenancy and
notices which are to be served after. The proviso to section 58, he said,
provided an example of a requirement for a notice to be served before
termination. Section 70(2), which deals with claims arising on the termination,
requires, he said, notice to be given after that event. It requires, as he put
it, the landlord to say there is a claim in being. A difficulty with that
argument is that section 58 also deals with a claim which arises (and is stated
to arise) on the termination of the tenancy, yet notice of intention to claim
is required before that claim is ‘in being’. The same applies to the notices
required from the tenant by proviso (c) to section 34(2) and by proviso (i) to
section 56(1).
It was also
argued that if a section 70 notice can be served before the termination of the
tenancy the applicant can serve it as early as he likes without any limit.
Without expressing any opinion as to whether this is so, it seems to me that it
can throw no light on the construction of section 70(2), since it is equally
applicable to notices under sections 34, 56 and 58.
I think that
it is an important consideration that section 70(2) only requires a notice of
intention to claim, which it is possible to give before termination, and not
particulars of that claim which could, of course, only be given after the
termination of the tenancy.
For the
landlord it was argued that there was nothing in the words of section 70(2) to
impose any limit except to the time before which the notice must be served and
that section 70(3) showed that, where it was intended that something must be
done after the termination of the tenancy, the clear words ‘within the period
of four months from the termination of the tenancy’ were used. I have little
doubt that the construction contended for by the landlord is the correct one,
but in any case I consider I am bound to adopt it by authority coming from an
unexpected quarter.
Schedule 3 to
the Local Government (Miscellaneous Provisions) Act 1982 deals with the
licensing of sex establishments. Para 10 (15) of that Schedule is in these
terms:
Any person
objecting to an application for the grant, renewal or transfer of a licence
under the Schedule shall give notice of his objection to the appropriate
authority, stating in general terms the grounds of his objection, not later
than 28 days after the date of the application.
The words ‘not
later than 28 days after the date of the application’ make this
limitation if anything more likely to mean within 28 days commencing with the
date of the event mentioned than the expression ‘before the expiration of two
months from’ the date of the event used in section 70(2). Nevertheless, in R
v Preston Borough Council, ex parte Quietlynn Ltd (The Times,
March 22 1984) the Court of Appeal held that a notice of objection given before
the application was in time. Stephen Brown LJ is reported as saying that
‘paragraph 10 (15) did not restrict the giving of notice of objection before
the application. It did restrict the giving of late notice of objection’.
In my
judgment, therefore, the requirements of section 70(2) are satisfied if the
notice is served before a date two months after the termination of the tenancy
whether it is served before or after that termination.
But it is
contended by the tenants that even if served in time these two documents were
not good notices under the section.
Section 70(2)
continues:
A notice
under this section shall specify the nature of the claim, and it shall be a
sufficient specification thereof if the notice refers to the statutory
provision, custom or term of an agreement under which the claim is made.
The first
notice which was sent to the tenants by post on August 25 1982 and received by
them in the ordinary course of post was a formal notice by the landlord’s
agents in the following terms:
We hereby
give you notice of our intention, on your quitting the holding, on the
termination of your tenancy, to claim compensation under section 58 of the
above Act for general deterioration of the holding as therein mentioned.
This is a good
notice under the proviso to section 58, which provides that:
. . .
compensation shall not be recoverable under this section unless the landlord
has, not later than one month before the termination of the tenancy, given
notice in writing to the tenant of his intention to claim compensation
thereunder.
It also seems
to me to comply perfectly with the requirements of section 70(2). It is a
notice of the landlord’s intention to make a claim and it sufficiently
specifies the nature of the claim by reference to the statutory provision under
which it is made.
Mr Evans argued
that it is a notice under the proviso to section 58,
section 58 and one under section 70. He quoted Woodfall on Landlord and
Tenant, 28th ed vol 2 p 2085, para 2.0159, in support of this proposition.
I am afraid I cannot agree. Once it is established that a valid notice under
section 70 can be served before the termination of the tenancy it follows, in
my judgment, that a valid notice under section 58 contains all the ingredients
required of a section 70 notice and as far as a claim under section 58 is
concerned no second notice is required.
There are, of
course, many claims by landlords and tenants where there is no requirement for
a notice to be served one month before the end of the tenancy. Section 70 in
those cases requires notice of intention to be served, but it may be served at
a later date.
It follows, in
my judgment, that this notice is a good notice but only a good notice of a
claim under section 58.
The next
document relied on is a letter sent by the landlord’s agents to the tenants on
September 16 1982 and received in the ordinary course of post. As far as
relevant that letter runs:
Following the
recent visits and inspections of the above property we are drawing up a
schedule of matters that are required to be done on your yielding up of the
tenancy on September 29 1982 in order to comply with the obligations under
paragraph 30 of your agreement.
We further
give you prior warning that it is our present intention to serve a notice under
section 70 of the Act in due course.
That is not, in
my view, a good notice under section 70. The mere statement that a schedule of
dilapidations is being drawn up, though it refers to the relevant terms of the
tenancy agreement, is not a sufficient ‘notice of intention to make the claim’.
Still less can a statement of present intention to serve a notice under section
70 in due course be itself a notice under section 70.
Before the
arbitrator it was argued that, since the Farmers’ Union of Wales were the
nominated agents of the tenants, the only proper address for service was the
union office and that these two notices served on the tenants personally were
not well served. Before this court that argument was, in my view rightly, abandoned.
It was replaced with the precisely opposite argument that the Union office was
a bad address for service. With that argument I shall deal in due course.
I now turn to
the two documents served after the termination of the tenancy. They were a
formal and clearly sufficient notice of intention to make claims under sections
57 and 58 of the Act and under certain terms of the tenancy agreement which was
dispatched to the tenants by recorded delivery and a copy of that notice which
was sent to the Farmers’ Union of Wales by ordinary first-class post. There is
no dispute as to the adequacy of these documents as notices. What is said on
behalf of the tenants is that the original was not served at all while the copy
was not served within the time limited by section 70(2).
Service of
notices under the 1948 Act is governed by section 92 of that Act, as
interpreted by section 7 of the Interpretation Act 1978. Section 92(1), read
together with sections 1 and 2 of the Recorded Delivery Service Act 1962, is as
far as is relevant in these terms:
Any notice .
. . under this Act shall be duly . . . served on the person . . . on whom it is
to be . . . served if it is delivered to him, or left at his proper address, or
sent to him by [recorded delivery]
Section 7 of
the Interpretation Act 1978 provides that:
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 a contrary intention appears, the service is deemed to be
effected by properly addressing, prepaying 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.
Section 92(4)
of the 1948 Act, construed in accordance with section 25 of the 1978 Act,
provides, as far as is relevant, that:
For the
purposes of this section and of section 7 of the Interpretation Act 1978 the
proper address of any person . . . on whom any such instrument as aforesaid is
to be . . . served shall . . . be the last known address of the person in
question.
In this case
the arbitrator has found as a fact that the last known address of the tenants
was Neuadd Villa, Ciliau Aeron, Lampeter, Dyfed. That was therefore the proper
address for service. The landlord’s agent sent the notice to the tenants by
recorded delivery at that address on November 22 1982, but it was never
delivered. It was returned by the Post Office on December 7 1982 and it is common
ground that that non-delivery was not due to any refusal or other action on the
part of the tenants. The landlord argues that, although the letter never
arrived, and the tenants therefore never knew anything about it, it was duly
served because it was sent to them by recorded delivery, which is all that is
required by section 92. But section 92 must be construed according to the
Interpretation Act, which provides that, where the notice is so sent, service
is deemed to be effected in the ordinary course of post only if the contrary is
not proved.
As Parker LJ
said in R v County of London Quarter Sessions Appeal Committee, ex
parte Rossi [1956] 1 All ER 670 at p 681A:
The section,
it will be seen, is in two parts. The first part provides that the dispatch of
a notice or other document in the manner laid down shall be deemed to be
service thereof. The second part provides that, unless the contrary is proved,
that service is effected on the day when in the ordinary course of post the
document would be delivered. This second part, therefore, dealing as it does
with delivery, comes into play, and only comes into play, in a case where under
the legislation to which the section is being applied the document has to be
received by a certain time. If in such a case ‘the contrary is proved’, ie that
the document was not received by that time or at all, then the position appears
to be that, though under the first part of the section the document is deemed
to have been served, it has been proved that it was not served in time.
That case
concerned a notice by the clerk of the peace under section 3(1) of the Summary
Jurisdiction (Appeals) Act 1933 to the respondent to a bastardy appeal. That
section requires that ‘the clerk of the peace shall in due course give notice’
to the respondent ‘as to the date, time and place fixed for the hearing of the
appeal’ and continues:
A notice
required by this subsection to be given by any person may be sent by post in a
registered letter addressed to him at his last or usual place of abode.
A notice was
duly sent to the respondent at the appropriate address but he was away in Kent
fruit-picking. He never got the notice and failed to appear at the hearing of
the appeals which were decided against him in his absence. Parker LJ went on:
Accordingly
the question is whether section 3(1) of the Act of 1933 on its true
construction provides that notice must be given within a certain time, and
whether that time relates to the receipt or merely to the dispatch of the
notice.
He went on to
hold, in agreement with the other two members of the court, that section 3(1)
required that the clerk of the peace should give notice ‘in due course’, which
meant ‘shall cause notice to be received in a reasonable time to enable the
party concerned to prepare for and attend the hearing’. If the notice had been
received in the ordinary course of post it would have been received in time for
this purpose, but since the contrary had been proved the notice was not deemed
to have been received in time.
Applying these
principles to the present case, section 70(2), unlike section 3(1) of the 1933
Act, itself prescribes a date by which the notice must be served. Does that
time ‘relate to the receipt or merely to the dispatch of the notice’?
Mr Graham
Jones, who appeared for the landlord, says that it does not matter much when a
section 70(2) notice is received. No great harm is done if it is received late
or not at all. Therefore the requirements for service of the notice must relate
to its dispatch, not to its receipt. But, as Mr Evans points out, the Act
requires the notice to be served by a particular time. If it is not received by
that time the tenant will not be able to avail himself of the period for
settlement of claims. He may find himself faced without warning with the appointment
of an arbitrator.
The object of
a notice is to bring something to someone’s attention. Prima facie,
therefore, where an Act requires notice to be served by a certain date, it
means it must be received by that date. Very clear words, in my judgment, are
required to displace that fundamental requirement. Some Acts contain such
words. The best-known example is probably section 179 of the Road Traffic Act
1972 which, as is generally known, was originally enacted in order to get over
the decision in Rossi’s case (supra); it provides that a person
shall not be convicted of certain offences under that Act unless within 14 days
of the commission of the offence a notice of the intended prosecution is served
upon him specifying the nature of the alleged offence and goes on:
The notice
shall be deemed . . . to have been served on any person if it was sent by
registered post or recorded delivery service addressed to him at his last known
address notwithstanding that the notice was returned as undelivered or was for
any other reason not received by him.
Those express
words make it clear that a notice of intended prosecution can be served even if
it is never received. I think it is quite impossible to imply any such words
into section 70(2). Accordingly,
recorded delivery there is a presumption that it is served in the ordinary
course of post, but if the contrary is proved it is not so served.
Mr Jones urged
upon me the dictum of Megaw J, as he then was, in Re Poyser and Mills’
Arbitration [1964] 2 QB 467 at p 479 where he accepted the proposition that
if notice is sent by registered post it is good service whether it is received
or not. That remark was an obiter dictum within an obiter dictum,
but in my view it was not intended to go any further than saying that if the
notice was proved to have been duly sent by registered post that in itself
established a prima facie case of service, though rebuttable, while if
the notice was sent by ordinary post it was necessary to prove receipt before a
prima facie case was made out.
He also
referred me to the case of Van Grutten v Trevenen [1902] 2 KB 82,
but since that case was decided on the quite different wording of the
Agricultural Holdings Act 1883, an Act to which the Interpretation Act did not
apply, and related to a tenant who refused to accept a registered letter (which
did not happen in the instant case), I do not think it is of any assistance.
He also relied
on Lord Newborough v Jones [1975] Ch 90, where a notice pushed by
the landlord under the door of the tenant’s house was held to be well served
though (unknown to the landlord) it went under the linoleum and was not
discovered until too late. But that case did not depend on any presumption of
service. It was held that the notice had been left at the tenant’s proper
address in a reasonable manner and so was good service under the express words
of section 92(1).
That leaves
the copy of the notice which was sent to the Farmers’ Union of Wales on November
22 1982 by ordinary first-class post and did not arrive (as the arbitrator
found) until November 30. That finding of the arbitrator is not challenged and
it is rightly conceded that November 30 was out of time.
That should be
the end of the matter. The service of that notice did not comply with section
70(2). Mr Evans, however, also urges on me another reason why this was bad
service and since this is one of the questions asked by the arbitrator I will
give my opinion on it.
The office of
the Farmers’ Union of Wales, he says, was not the proper address for the
service of the notice, since the Union were not the agents of the tenants for
this purpose. He points out that section 92(3) provides that a notice to be
served on the tenant
shall, where
[an] agent . . . is responsible for the control of the . . . farming . . . of
the . . . holding, be duly . . . served if . . . served on that agent.
The Union were
not responsible for the control of the farming of the holding, he says, therefore
notice served on them was not duly served.
I do not
agree. What happened here was that before the service of the notice at least
three letters had been sent by the Union to the landlord asking her to send all
correspondence relating to the tenancy to the Union and not to the tenants. On
November 18 1982 the second tenant herself wrote to the landlord saying that
all communications were to be made direct to the Union. That was enough, in my
judgment, to constitute the Union the tenants’ agents to receive notices under
the Act. The fact that the Act provides that service on one class of agents
shall be sufficient does not mean that the tenant cannot authorise someone else
to receive notices on his behalf. It would be manifestly unjust that the
tenants, after insisting that all documents relating to the tenancy should be
sent to the Union and not to them, should be able to claim that a notice sent
to the Union rather than to them was not duly served.
On the other
hand the fact that the tenants had appointed an agent authorised to receive
notices did not, in my view, preclude service on the tenants personally in
accordance with the statute.
I have now, I
think, dealt with all the questions posed by the arbitrator in so far as they
have been argued before me. The answers to those questions are as follows:
(a) Which was the correct address for service of
the landlord’s notice upon the tenants? Answer:
Neuadd Villa, Ciliau Aeron, Lampeter, or care of the Farmers’ Union of
Wales at Lampeter.
(b) If Neuadd Villa aforesaid was the correct
address for service, whether the return of the notice by the Post Office giving
reasons for non-delivery precluded the usual presumption of due service? Answer: Yes.
(c) If the correct address was care of the
Farmers’ Union of Wales at Lampeter:
(1) Whether the fact that the notice was merely a
copy for information affected its authenticity?
Answer: The tenant abandoned this point and the answer is No.
(2) Whether the use of first-class pre-paid post
rather than recorded delivery was a proper mode of service within section 92 to
the Act? Answer: Yes, provided it
is proved the letter was received before the expiry of the time-limit.
(3) Whether the evidence as to delivery on
November 30 1982 being accepted by the arbitrator as having rebutted the usual
presumption as to delivery of first-class pre-paid mail precluded the
landlord’s claim of due service? Answer:
There is no presumption of delivery under this Act except for letters sent
by recorded delivery.
(4) Whether the arbitrator having found as a fact
and accepted that the copy notice was not received until November 30 1982 the
usual presumption as to delivery of the first-class pre-paid mail was thereby
rebutted and the landlord’s claim for due service was thereby precluded? Answer: See answer to question (c)(3).
On the facts as found this notice was not served in time.
Finally there
is the question which the parties now agree they want answered by the court,
namely
Whether, upon
the facts found by the arbitrator and recorded in the special case and the
agreed amendments thereto, the landlord complied with the provisions of section
70(2) of the Agricultural Holdings Act 1948?
My answer to
that question is: Yes, but only in so far as the landlord’s claim under section
58 is concerned.
