Elizabeth Dwomoh discusses a recent Court of Appeal decision that provides guidance on the test to be applied when determining the validity of statutory notices that contain errors.
Key points
- The reasonable recipient test applies when determining the validity of statutory notices that contain errors
- It is also necessary to consider whether the notice as interpreted complies with the statutory requirements having regard to its purpose
It is not uncommon for notices for possession served under section 8 or section 21 of the Housing Act 1988 (the 1988 Act) to contain errors. Errors are commonly made in relation to dates inserted into the notices. In Pease v Carter and another [2020] EWCA Civ 175; [2020] PLSCS 26, the Court of Appeal has provided welcome guidance on the correct approach to be taken in determining whether such errors render statutory notices invalid.
The problem
On 1 August 2007, Captain Nigel Pease granted Jeffrey and Louise Carter a six-month fixed-term joint assured shorthold tenancy (AST). The tenancy continued as a statutory periodic AST after the expiry of the fixed term.
On 7 November 2018, Pease decided to terminate the tenancy on the mandatory and discretionary rent arrears grounds under schedule 2 to the 1988 Act. He served notices pursuant to section 8 of the 1988 Act on the Carters.
As Pease was relying on rent arrears grounds, proceedings could not begin earlier than two weeks from the date the notices were served. The notices stated in section 5 that “…court proceedings will not begin until after: 26 November 2017”. This was an error. The correct date was 26 November 2018. The Carters contended that the typographical error rendered the notices invalid.
The county court decision
Applying the “reasonable recipient” test laid down by the House of Lords in Mannai Investment Co Ltd v Eagle Star Assurance Co Ltd [1997] UKHL 19, Pease argued that the notices were valid. The reasonable recipient of the notices would have realised the 26 November 2017 was a typographical error and the intended date was 26 November 2018. Judge Gargan agreed, but nevertheless found that the notices were invalid.
Applying the reasoning of Hale LJ in Fernandez v McDonald [2003] EWCA Civ 1219; [2003] 3 EGLR 22, the judge held that the reasonable recipient test did not apply to notices served under section 8. The notices failed to specify a date which was not earlier than the expiry of two weeks from the date of service of the notice. Sections 8(3)(b) and 8(4B) of the 1988 Act were clear and precise, were not difficult for landlords to comply with and did not have particularly serious consequences for landlords if they failed to comply. A defective notice could be cured by serving a further valid notice.
The appeal
Pease appealed on two grounds. First, the judge was wrong to hold that the reasonable recipient test did not apply. Second, and in the alternative, the judge was wrong to hold that the notices were not “substantially to the same effect”. The Court of Appeal agreed with Pease on both grounds after a comprehensive analysis of the authorities in relation to unilateral notices.
Arnold LJ, giving the leading decision, acknowledged that the “reasonable recipient” test laid down in Mannai was the starting point and that district judges should have no real difficulty in applying it. Although Mannai concerned an error in the date of a contractual break clause, York v Casey [1998] 2 EGLR 25 and Speedwell Estates Ltd v Dalziel [2001] EWCA Civ 1277 established that the Mannai approach to interpretation also applied to statutory notices.
The judge further observed that in both Ravenseft Properties Ltd v Hall [2001] EWCA Civ 2034 and B Osborn & Co Ltd v Dior [2003] EWCA Civ 281; [2003] 5 EG 144 (CS) the Court of Appeal found that the Mannai test was applicable to statutory notices.
Contrary to the Court of Appeal’s analysis of Fernandez in Spencer v Taylor [2013] EWCA Civ 1600, Arnold LJ found that Fernandez was not authority for the proposition that, in respect of errors in a notice served pursuant to section 21(1)(4) of the 1998 Act, a court could not correct an obvious mistake even if the reasonable recipient would have realised a mistake had been made and understood what was being conveyed.
Summary of the guidance
In light of the authorities, Arnold LJ provided the following guidance:
(i) A statutory notice was to be interpreted in accordance with Mannai; namely, as it would be understood by a reasonable recipient reading it in context.
(ii) If a reasonable recipient would appreciate that the notice contained an error, for example as to date, and would appreciate the meaning the notice was intended to convey, then that was how the notice was to be interpreted.
(iii) It was also necessary to consider whether, so interpreted, the notice complied with the relevant statutory requirements. This involved considering the purpose of those requirements.
(iv) Even if a notice, properly interpreted, did not precisely comply with the statutory requirements, it may be possible to conclude that it was “substantially to the same effect” as a prescribed form if it nevertheless fulfilled the statutory purpose. This remained the case even if the error related to information inserted into or omitted from the form, and not to wording used instead of the prescribed language.
Elizabeth Dwomoh is a barrister at Lamb Chambers
