Landlord and tenant — Service of notices — Recorded delivery service — Notices expressed to operate at common law and under section 25 of the Landlord and Tenant Act 1954 respectively — Notices received by someone who signed postman’s recorded delivery receipt book — Whether properly served on tenant, who denied receiving them —
was the lessee of showrooms of which the landlord was the owner — Original term
of lease was 12 months from December 25 1973 and thereafter at six months’
notice — The two notices served by the landlord on April 15 1988, accompanied
by a letter of the same date, were expressed as terminating the tenancy on
December 24 1988 — The postman’s recorded delivery book indicated that on April
18 1988 the two notices were received by someone whose signature was illegible
— The tenant’s evidence was that he had not received them — He gave no
counternotice and made no application for a new tenancy — He said that he was
rarely at the premises himself and had given instructions that no one was to
sign for recorded delivery letters addressed to him — There were apparently
some nondescript businesses behind his premises which had no address except
‘behind’ or ‘at the rear’ of his address — It was possible, but there was no
evidence, that somebody there might have received the notices
appeal by the tenant was from a summary judgment for possession — The broad
question was whether the notices had been properly served or not — After
considering the relevant sections of the Landlord and Tenant Act 1954, the
Interpretation Act 1978, section 7, and the cases of R v County of London Quarter
Sessions Appeals Committee, ex parte Rossi, Hosier v Goodall and Chiswell v Griffon Land
& Estates Ltd, Glidewell LJ said that the real issue was whether, for the
purposes of section 7 of the Interpretation Act, the tenant’s evidence that he
did not receive the notices, and the associated evidence he gave as to the
surrounding circumstances, were sufficient to ‘prove the contrary’ — This meant
sufficient contrary evidence to displace the statutory provision that the
service was deemed to have been effected — Glidewell LJ went on to state in
some detail what circumstances, in his opinion, might amount to proving the
contrary (including positive evidence that the document had been returned to
the sender or, in the case of registered or recorded delivery post, the absence
of any acknowledgement of receipt) — His dicta in this respect will no doubt be
regarded as providing useful guidance, but it may be noted that Balcombe LJ
preferred to reserve judgment as to these circumstances until particular cases
arose — Both judges agreed that in the present case the tenant had not
succeeded in proving the contrary — Hence, as service of the notices had been
properly effected, no counternotice under section 25(5) given and no
application made for a new tenancy, the tenant’s tenancy came to an end on
December 24 1988 — Appeal dismissed
be noted that Balcombe LJ expressed the view that the judgment of Denning LJ
(as he then was) in the Rossi case went further than was necessary for the purpose
of that decision, a criticism previously made in Moody v Godstone Rural District
Council — Balcombe LJ said ‘for my part, I would be reluctant to go wider than
Rossi and would simply say that ‘in a case where time is relevant — and I
accept that this is such a case — then the contrary may be proved’
The following
cases are referred to in this report.
Chiswell v Griffon Land & Estates Ltd [1975] 1 WLR 1181; [1975] 2
All ER 665; (1975) 30 P&CR 211, CA
Hoster v Goodall [1962] 2 QB 401; [1962] 2 WLR 157; [1962] 1 All ER
30; (1962) 60 LGR 500, DC
Moody v Godstone Rural District Council [1966] 1 WLR 1085; [1966]
2 All ER 696; (1966) 18 P&CR 249, DC
Price v West London Investment Building Society [1964] 1 WLR 616;
[1964] 2 All ER 318
R v London County Quarter Sessions Appeals Committee, ex parte
Rossi [1956] 1 QB 682; [1956] 2 WLR 800; [1956] 1 All ER 670, CA
This was an
appeal by the defendant, Robert Frederic Johns, from the decision of Potter J
dismissing an appeal from the judgment of Master Lubbock granting a possession
order to the plaintiffs, Lex Service plc, in respect of two motor-car showrooms
occupied by the defendant at 16 and 18 The Broadway, Bexleyheath, Kent.
Hugh Jackson
(instructed by Walker Martineau) appeared on behalf of the appellant; Shane
Dougall (instructed by Berwin Leighton) represented the respondents.
Giving
judgment, GLIDEWELL LJ said: The plaintiff company is the owner of two
showrooms at 16 and 18 The Broadway, Bexleyheath. The buildings stand on
opposite sides of an access road. The defendant, Mr Johns, is the assignee of
the lease of the showrooms, which he occupies as motor-car showrooms. The
original term of the lease was 12 months from December 25 1973 and thereafter
on six months’ notice, such notice to expire on the usual quarter-days.
On April 15
1988 the plaintiff company, through their solicitors, served or — because this
is the issue which arises — endeavoured to serve two notices. One a notice
terminating Mr Johns’ tenancy at common law; and, second, a notice under section
25 of the Landlord and Tenant Act 1954, both of those notices expressed as
terminating the tenancy on December 24 1988. The notice under section 25 of the
1954 Act contained the provision:
If you apply
to the court under Part II of the Landlord and Tenant Act 1954 to be granted a
new tenancy, we will oppose it on the grounds mentioned in paragraph (f)
of section 30(1) of the Act,
that is to say
that on the termination of the tenancy the landlord intended to carry out
substantial works which he could not carry out without obtaining possession of
the premises.
The notices
were accompanied by a letter bearing the same date and they were posted by the
recorded delivery service. There is in evidence before us, as there was before
both courts below, a copy of a sheet from the postman’s recorded delivery
receipt book which shows that on April 18 1988 a document numbered as is the
receipt for the recorded delivery of the letter and the two notices was
received by somebody whose signature is illegible. In other words, all the
requirements for recorded delivery of a document or letter are proved to have
been carried out.
It is accepted
that as a matter of law if the two notices were properly served then they were
effective to terminate the tenancy on December 24 1988. Mr Johns gave no
counternotice under section 25(5) of the Landlord and Tenant Act 1954, nor did
he make an application for a new tenancy under section 24(1) of that Act.
Accordingly, if the notices were properly served, his tenancy came to an end on
Christmas Eve last. He has, however, remained in occupation of the premises
since that time; the plaintiffs claim as a trespasser.
The plaintiffs
started the present proceedings by a writ issued on January 12 1989, and in
April 1989 they applied for summary judgment under Ord 14 of the Rules of the
Supreme Court. By affidavit served in opposition to the plaintiffs’ application
for summary judgment Mr Johns deposed as follows:
I
categorically deny that the notices allegedly served by the London Borough of
Bexley
— he must mean
by the plaintiffs. I should have said the notices were served on behalf of the
predecessors in title of the present plaintiffs and they were the London
Borough of Bexley. It is therefore correct to assert that it is they who served
or purported to serve the notices —
were ever
received by myself, or any person on my behalf as alleged by the plaintiffs. I
am the only person with authority to sign for letters or parcels delivered by
recorded delivery that are correctly addressed to myself. I am very rarely at
the premises and I therefore issued instructions that no person on my behalf
was to sign for recorded delivery letters unless they are addressed to them
personally. I verily believe that my instructions have been adhered to and that
no other person on the premises on April 18 1988 duly signed or received the
notices as alleged.
He then goes on
to aver, both in that affidavit and in a later affidavit, that a number of
other businesses were being carried on, not on the premises 16 to 18 Broadway,
but in other buildings behind 16 to 18 Broadway which had apparently at the
relevant time no address save ‘behind’ or ‘at the rear of’ 16 to 18 Broadway.
The obvious inference which Mr Johns seeks to have drawn is that the notices
may have been delivered at one or other of those premises and that somebody there
may have received them. But it is a matter of inference; there is no evidence
to that effect and it is a matter of pure speculation.
In addition,
Mr Johns in his first affidavit deposes ‘I categorically deny that the
signature that appears thereon is that of myself or of any other person on my
behalf’.
The sole issue
on the application for summary judgment was, were the notices properly served
or not? On June 8 1989 Master Lubbock
gave judgment for the plaintiffs for possession on that application, together
with a money judgment for some £3,000-odd together with mesne profits. On
August 2 1989 Potter J dismissed an appeal against Master Lubbock’s judgment
and the defendant now appeals to this court.
The relevant
statutory provisions start with section 25 of the Landlord and Tenant Act 1954.
That, so far as material, provides:
The landlord
may terminate a tenancy to which this Part of this Act applies by a notice
given to the tenant in the prescribed form specifying the date at which the
tenancy is to come to an end . . .
The only
relevant part of that which one needs to notice is that the requirement is that
the notice must be given to the tenant, that is to say, to Mr Johns.
Service of
notices for this purpose is dealt with in section 23 of the Landlord and Tenant
Act 1927, subsection (1) of which, so far as is material, provides:
Any notice .
. . shall be in writing and may be served on the person on whom it is to be
served either personally, or by leaving it for him at his last known place of
abode in England and Wales, or by sending it through the post in a registered
letter addressed to him there.
I need not read
the rest of the subsection.
By section
66(4) of the Landlord and Tenant Act 1954, section 23 of the 1927 Act applies
also to notices served under the 1954 Act as it does to notices served under
the 1927 Act.
For a business
it has been held that the ‘last known place of abode’ in section 23 is the
business address: see Price v West London Investment Building Society
Ltd [1964] 1 WLR 616.
Finally,
although the 1927 Act speaks of delivery through the post in a registered
letter, since the Recorded Delivery Service Act of 1962 references in statutory
provisions such as section 23 to delivery by registered post are to be read as
including references to delivery by recorded delivery service.
The last
statutory provision to which I need to refer is section 7 of the Interpretation
Act 1978, which provides:
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 the 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.
In ex parte
Rossi [1956] 1 QB 682* a notice of an adjourned date of hearing of an
appeal to quarter sessions against a conclusion on a bastardy summons that the
respondent was the father of an illegitimate child was proved to have been sent
by registered post but returned marked ‘Undelivered. No response’. The
respondent did not appear on the date fixed for hearing. The court accepted the
evidence as being evidence of good service and heard the appeal in his absence.
The Court of Appeal, hearing an appeal from the Divisional Court on an
application for an order of certiorari to quash the proceedings in the quarter
sessions, concluded that where there was evidence that the document had been
returned (as this one had) that was clear evidence that it had not been
delivered and thus was evidence to the contrary for the purposes of the then
Interpretation Act. In other words, it was positively proved that service had
not been effected. Certiorari therefore went.
*Editor’s
note: R v London County Quarter Sessions Appeals Committee, ex parte
Rossi.
In the course
of his judgment in that case Denning LJ (as he then was) said at p 694:
To sum up,
when service of process is allowed by registered post, without more being said
on the matter, then if the letter is not returned, it is assumed to have been
delivered in the ordinary course of post and any judgment or order by default
obtained on the faith of that assumption is perfectly regular. It will not as a
rule be set aside except on payment of costs thrown away: see TO Supplies
(London) Ltd v Jerry Creighton Ltd. But if the letter is returned
undelivered and nevertheless, notwithstanding its return, a judgment or order
by default should afterwards be obtained, it is irregular and will be set aside
ex debito justiciae. The order of quarter sessions here was irregular
because there was no proper service and it should be set aside.
Parker LJ,
giving the third judgment, said at p 700:
Whether
despatch of this letter, though undelivered, constituted the giving of a notice
depends on the true construction of section 3(1) read with section 26 of the Interpretation
Act 1889.
I interpolate,
section 26 is the predecessor section of section 7 of the 1978 Interpretation
Act.
Then his
lordship read the terms of section 26 of the Interpretation Act 1889 and went
on:
The section
it will be seen is in two parts. The first part provides that the despatch of
the 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 have been delivered. This second part, therefore, concerning
delivery, as it does, 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’, that is, 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.
Hosier v Goodall [1962] 2 QB 401 was a case in the Divisional Court
before the learned Lord Chief Justice Lord Parker (as by then he was), Ashworth
J and Widgery J in which a notice of intended prosecution was served on a
prospective defendant who had been involved in a car accident — the incident
out of which the intended prosecution arose. It was sent by registered post to
his home address. His wife received it and signed a receipt for it. Because her
husband was in hospital she decided not to show the notice to him in order,
presumably, not to trouble him more than he was already troubled. It was not
until a month after the accident that she told him that she had received the
notice, and by then, for the purposes for which notices of intended prosecution
have to be served under the Summary Jurisdiction Act, it was out of time. The
question was whether her receipt of it and whether the service of it by
registered post with her signing as having received it constituted good
service. It was held that it did, having been sent to the defendant’s address
and received by his wife, she being a person who was authorised to receive and
deal with it.
In Chiswell
v Griffon Land & Estates Ltd [1975] 1 WLR 1181 this court was again
concerned with a question related to the service of notice under the Landlord
and Tenant Act 1954. In this case it was the tenant’s counternotice which was
sent by ordinary post by the tenant’s solicitors and was not received by the
landlord’s solicitors. The question was whether there had been good service of
that document so as to entitle the tenant to apply for a new tenancy under
section 24 of the Act. The judge at first instance found that the tenant was
debarred from entertaining the application and an appeal against that
conclusion was dismissed. In the course of his judgment Megaw LJ said, at p
1188 G:
In my view,
the judge was right in his conclusions with regard to Mr Payton’s [counsel for
the tenant] first point, the provisions of section 23 of the Landlord and
Tenant Act 1927 are incorporated in the Act of 1954 by section 66(4) of that
latter Act. Section 23 of the Landlord and Tenant Act 1927 lays down the manner
in which service of a notice can be effected. It is provided as what I may call
at any rate the primary means of effecting service, that it is to be done
either by ‘personal’ service or by leaving the notice at the last known place
of abode, or by sending it through the post in a registered letter, or (as now
applies) in a recorded delivery letter. If any of those methods are adopted,
they being the primary methods laid down, and, in the event of dispute, it is
proved that one of those methods has been adopted, then sufficient service is
proved. Thus if it is proved, in the event of dispute, that a notice was sent
by recorded delivery, it does not matter that that recorded delivery letter may
not have been received by the intended recipient. It does not matter, even if
it were to be clearly established that it had gone astray in the post. There is
the obvious, simple way of dealing with a notice of this sort.
Then he went on
to deal with the situation where it had not been sent by registered or recorded
delivery.
That passage
which I have read is, of course, in the context of that case, obiter dictum,
but obviously it is of considerable persuasive authority and was adopted and
followed by the learned judge in this case. The sentence ‘does not matter, even
if it were to be clearly established that it had gone astray in the post’ may,
perhaps, apply only in particular circumstances, but the antecedent sentence
‘if it is proved, in the event of dispute, that a notice was sent by recorded
delivery, it does not matter that that recorded delivery letter may not have
been received by the intended recipient’ is, of course, directly in point in
this case.
The real issue
in the present case is whether, for the purposes of section 7 of the
Interpretation Act 1978, the evidence of Mr Johns that he did not receive the
letter and the associated evidence to which I have referred proves the
contrary; that is to say, is contrary evidence which contradicts the statutory
provision that the service is deemed
contrary is either positive evidence that the document has been returned to the
sender or, if it be sent by registered or recorded delivery post, that there is
no acknowledgement of its ever having been received by the recipient. If there
were evidence of such a document having been received by some person but it
were proved that that person was not the person upon whom the document was
required to be served and that the person who received the document had not
brought it to the attention of the person upon whom it was required to be
served, then that, I would accept, would prove that the document had not been
properly served. But in the absence of such evidence then, in my judgment, the
contrary is not proved. In other words, the statutory provisions are there to
entitle those who have to serve documents by taking the steps laid down by the
statute, unless the document is returned to them, to be satisfied that service
has been effected. It is not sufficient thereafter for the person upon whom
service is required to be made to assert that the document has not been served
upon him, albeit somebody has acknowledged receipt of the document required to
be served.
Under these
circumstances I conclude that the master and the learned judge were both right.
Service has, in my judgment, been properly effected. Accordingly, when no
counternotice under section 25(5) of the Act was given and when no application
for a new tenancy was made the tenant ceased to have such rights as he might
have had under the Landlord and Tenant Act 1954 and, accordingly, his tenancy
came to an end on December 24 1988. Accordingly, there was no valid defence to
the action. Judgment was properly entered in favour of the plaintiffs. I would
therefore dismiss this appeal.
Agreeing that
the appeal should be dismissed, BALCOMBE LJ said: As my lord has said,
the case really turns on section 7 of the Interpretation Act 1978. That section
falls into two parts. First, unless the contrary intention appears, the service
is deemed to be effected by properly addressing, pre-paying and posting a
letter containing the document. That has happened here, so the service is
deemed to be effected. Then the second part of the section refers to ‘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’.
The case of Rossi,
to which my lord has referred — a decision of this court reported in [1956] 1
QB 682 — was a case where time was essential. That indeed appears both from the
judgment of Parker LJ and the judgment to the like effect of Morris LJ. In my
judgment, the passage from the judgment of Denning LJ (to which my lord also
referred) is wider than was necessary for the purposes of that decision, and
indeed that is the effect of the decision of the Divisional Court in Moody
v Godstone Rural District Council [1966] 1 WLR 1085, a case where time
was not essential. There the notice had been sent to the defendant by prepaid
registered post and a certificate of delivery purporting to be signed by him
was produced at the hearing of the information before the justices. His
signature was not identified nor was the certificate of delivery put in
documentary form to him when he gave evidence to see whether he identified or
acknowleged it. The defendant denied that he or any agent of his had received
the notice and it did not appear that he was cross-examined or challenged on
that assertion. The Divisional Court, consisting of Lord Parker CJ and Marshall
and James JJ held that the requirements of the particular section there
concerned (section 214(1)(c) of the Town and Country Planning Act 1962) had
been complied with and the enforcement notice had been duly served. James J —
who gave the first judgment, with which the other learned judges agreed —
referred to Rossi and said specifically that Denning LJ expressed his view in
terms wider than the views expressed in the two other judgments.
So, for my
part, I would be reluctant to go wider than Rossi and would simply say
that in a case where time is relevant — and I accept that this is such a case —
then the contrary may be proved. Now the contrary quite clearly, in my
judgment, was not here proved, as in the Godstone case. It is not
sufficient for Mr Johns merely to deny having received the letter. If it were otherwise,
the very convenient provisions enabling service in so many cases to be effected
by one form of post or another, or by leaving at the person’s last known place
of abode, would be rendered nugatory, because anyone could always say ‘I did
not receive this notice’ and thus raise a triable issue.
With respect
to my lord, for the purposes of this case I would prefer to reserve my judgment
as to those particular circumstances which might amount to proving the contrary
for the purposes of section 7 of the Interpretation Act 1978 to a case where
particular matters arise. But subject to that, I agree, for the reasons given,
that this appeal should be dismissed.
The appeal
was dismissed with costs. Leave to appeal to the House of Lords was refused as
was a stay pending application to the House of Lords for leave to appeal.
