Landlord and tenant – Assured shorthold tenancy – Possession order – Appellant landlord serving possession notices on respondent tenants under section 8 of Housing Act 1988 – Notice containing error as to date of commencement of proceedings – County court holding notices invalid – Appellant appealing – Whether reasonable recipient test applying to section 8 notices – Whether notices complying with statutory requirements – Appeal allowed
The appellant landlord granted the respondent tenants an assured shorthold tenancy of Ivy House, Streatlam, Barnard Castle on 1 August 2007 for a period of six months. After the expiry of the six-month term, the tenancy continued as a statutory periodic assured shorthold tenancy. The rent was £800 per month, subsequently reduced to £500 per month. The appellant served notices of proceedings for possession under section 8 of the Housing Act 1988 on the respondents on 7 November 2018 on the ground that they had failed to pay the rent since April 2018, save for one payment in February 2019. The notices were signed and dated 7 November 2018 but there was a typographical error stating that the earliest date proceedings would begin was 26 November 2017 rather than 26 November 2018.
At a first possession hearing the district judge allowed the appellant to rely on the notice notwithstanding the error. The respondents appealed against that decision and the county court held that, although there was an obvious typographical error and the reasonable recipient of the notices would have realised that the intended date was 26 November 2018, the reasonable recipient test did not apply to notices served under section 8 of the 1988 Act. Applying the reasoning of Hale LJ in Fernandez v McDonald [2003] EWCA Civ 1219; 3 EGLR 22, section 8(3)(b) and 8(4B) were clear and precise, were not difficult for landlords to comply with and did not have particularly serious consequences for landlords if not complied with, since a defect in a notice could easily be cured by service of a further valid notice. The statute required notices to specify a date which was not earlier than the expiry of two weeks from the date of service of the notice. The notices did not do so. They were therefore invalid.
The appellant appealed contending that: (i) the judge was wrong to hold that the reasonable recipient test did not apply to section 8 notices; or, alternatively, (ii) that the notices were substantially to the same effect as the prescribed form.
Held: The appeal was allowed.
(1) A statutory notice was to be interpreted in accordance with Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19; [1997] AC 749 that is to say, as it would be understood by a reasonable recipient reading it in context. If a reasonable recipient would appreciate that the notice contained an error, for example as to date, and would appreciate what meaning the notice was intended to convey, then that was how the notice was to be interpreted. It remained necessary to consider whether, so interpreted, the notice complied with the relevant statutory requirements. That involved considering the purpose of those requirements. Even if a notice, properly interpreted, did not precisely comply with the statutory requirements, it might be possible to conclude that it was “substantially to the same effect” as a prescribed form if it nevertheless fulfilled the statutory purpose. That was so even if the error related to information inserted into or omitted from the form, and not to wording used instead of the prescribed language.
(2) The reasonable recipient would conclude that the person who typed the notices had mistakenly typed “7” rather than “8”. Having mentally corrected that error, the reasonable recipient would conclude that 26 November 2018 made sense as being the intended date and would have no reason to think that the day or month were erroneous. If there was any doubt about that conclusion, it would be dispelled by the covering letters which stated: “Proceedings will not be issued before 26 November 2018 but will be issued within 12 months of service of the notice” which left the reasonable recipient in no doubt as to what the intended date was. It was clear from York v Casey [1998] 2 EGLR 25 that such covering letters might be taken into account in determining how the reasonable recipient would interpret a statutory notice.
Accordingly, the judge had erred in holding that the reasonable recipient test did not apply to section 8 notices. Statutory notices were to be interpreted in accordance with Mannai v Eagle. Contrary to what the judge thought, the decision in Fernandez v McDonald was not authority for the proposition that that approach was inapplicable where the statutory requirements were clear and precise, were not difficult for the party serving the notice to comply with and did not have particularly serious consequences for that party if not complied with. Contrary to the respondents’ submission, the need for practical justice in circumstances where busy district judges had to deal with lengthy possession lists did not require a bright-line test. District judges should have no real difficulty in applying Mannai v Eagle: Fernandez v McDonald and Spencer v Taylor [2013] EWCA Civ 1600; [2014] HLR 9 considered.
(3) It remained necessary, however, to consider whether the notices complied with the statutory requirements. That required consideration of the purpose of those requirements. Section 8(3)(b) and 8(4B), as amended, did not require the notice to specify a date which had a particular contractual significance. Their combined effect was simply to require the landlord to give the tenant notice that the proceedings would begin not earlier than a date which was not to be earlier than the expiry of two weeks from the date of service of the notice (and not later than a year from then: section 8(3)(c)). The purpose of the statutory requirement for at least two weeks’ notice was to give the tenant time to take steps to deal with the threatened proceedings, eg by trying to pay off arrears of rent, taking advice, obtaining representation and/or seeking alternative accommodation.
Given that the date of 26 November 2017 was an obvious typographical error and that a reasonable recipient would have understood that the intended date was 26 November 2018, the notices served the statutory purpose of giving the respondents at least two weeks’ warning of the commencement of proceedings. Accordingly, the notices were valid.
Alice Richardson (instructed by Tilley Bailey & Irvine LLP, of Hartlepool) appeared for the appellant; Christopher Maynard (acting pro bono) appeared for the respondents.
Eileen O’Grady, barrister
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