E-mail may have transformed the way we communicate, but not the way notices are served in enfranchisement claims. James Driscoll clicks send on his latest case update
Key points
- A counter-notice to an enfranchisement claim cannot be validly served by e-mail
- In urgent cases, there is no substitute for personal service
Communication by e-mail has become an everyday occurrence. But would one use e-mail to attempt service of a notice? Is attaching a document to an e-mail a valid form of service? This, among other issues, was considered by the Central London County Court in the case of Cowthorpe Road 1-1A Freehold Ltd v Wahedally (as executor of Ahamadally) [2016] PLSCS 247.
The claim
The claimant is a company formed by the leaseholders of the two flats in a building which wished to acquire the freehold. Its claim notice was served by post and it gave its solicitors’ address for service of notices.
Under Part I of the Leasehold Reform, Housing and Urban Development Act 1993 (“the 1993 Act”), the landlord (the defendant in these proceedings) must give a counter-notice by a date specified in the claim notice (which must not be less than two months from the date on which it was given).
Service of notices in enfranchisement and new lease claims under the 1993 Act are governed by strict time limits. If the landlord gives a defective notice or fails to give the notice in time, the claimant leaseholders are entitled to apply to the court for a vesting order. It has been decided that the court must make an order on the basis of the proposals in the claim notice; in other words, the landlord loses the right to challenge the proposed price to be paid for the freehold (see: Willingale v Globalgrange Ltd [2000] EWCA Civ 520; [2000] 2 EGLR 55).
The counter-notice
In Cowthorpe, the landlord had until 15 June 2013 to give the counter-notice, which was a Saturday. The day before, those advising the landlord were in a position to give the counter-notice. They unsuccessfully attempted to send a copy by fax. When this failed they sent two e-mails, one of which, at least, was transmitted to the claimant’s solicitors that day. Further attempts to serve, it was claimed, included delivery to the offices of the claimant (on the Saturday) and by posting a signed copy (which was received the following Monday, after the last possible date for service).
In the ensuing correspondence and e-mail exchanges the claimant took the position that the counter-notice could only be served by post and that it was received after the final date for service. The defendant landlord contended that a copy was given by e-mail on the Friday and that personal service was effected the following day.
Proceedings were started under section 25 of the 1993 Act, which states that the court “may” make an order “in accordance with the proposals contained in the initial notice” (section 25(1)). Judge Dight reviewed the evidence and concluded that the landlord failed to prove that personal service had been effected. The service by post could have been effective but it was received after the last date for service. Section 99 of the 1993 Act provides that notices must be in writing and may be served by post. Can e-mailing a notice amount to a valid service?
Was e-mail valid service?
The only authorities relating to this issue, stated the court, are two previous county court decisions. Stoll Construction v Kelly (November 2000, Brentford County Court) decided that a claim notice cannot validly be given by fax. On the other hand, Achieving Perfection Ltd v Gray (May 2015, Brighton County Court) decided that a claim notice can validly be given by e-mail.
In the absence of a binding authority, Judge Dight focused on the language in section 99, which specifies that notices must be in writing and can be served by post. He concluded that a notice cannot be validly served by e-mail.
Even if e-mailing is valid service, the claimant’s solicitors had stated in correspondence that they do not accept service by e-mail or fax. They had no authority to accept service in these ways. Their policy in enfranchisement claims is not to accept service other than by post or by personal service.
Was there personal service?
The court also considered the argument that service was effected on the Saturday. In principle, it concluded that, as the claimant’s solicitors stated that they would accept service at their office address, the fact that the office was closed when the document was left there did not of itself prevent a valid service. However, in this case what was delivered (if there was a delivery) was a copy, not the original counter-notice. This was posted and could not have been received earlier than the following Monday. Nor did the evidence show that there was actual delivery of the notice that Saturday. The court confirmed that it does not have power to extend time for serving notices.
Taken together, this led to the factual conclusion that the original counter-notice was not served until the Monday – two days out of time. As a result, and applying the Willingale principle, the claimant was entitled to an order vesting the freehold in its company for the price it proposed (less, presumably, its costs in bringing the application).
This decision reminds one how rigid the procedural rules are in enfranchisement claims and it also shows that e-mail is not a valid way of serving notices. When time is short there may be no substitute for personal service.
This leaves open the question of whether the parties to a claim can agree to the use of e-mail to deal with the exchange of notices.
James Driscoll is a solicitor and a writer
