Beanby Estates Ltd v Egg Stores (Stamford Hill) Ltd
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE NEUBERGER |
| Judgment Date | 09 May 2003 |
| Neutral Citation | [2003] EWHC 1252 (Ch) |
| Court | Chancery Division |
| Docket Number | CLAIM NO: SD20242 |
| Date | 09 May 2003 |
[2003] EWHC 1252 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Neuberger
CLAIM NO: SD20242
CH/2003/APP/0074
MISS SIRI COPE (instructed by Messrs. Pothecary & Barratt) for the Claimant
MISS MARIE-CLAIRE BLEASDALE (instructed by Messrs. Nathan Iwanier) for the Defendant
Egg Stores (Stamford Hill) Limited is the tenant, and Beanby Estates Limited is the landlord, of premises at 46 Stamford Hill, London N6. The tenant is in occupation of the premises under a lease which attracts the protection of Part II of the Landlord & Tenant Act 1954.
On 7th January 2002, the landlord sent in the post by recorded delivery to the tenant at the premises a notice under section 25 of the 1954 Act. The notice was actually received by the tenant on 9th January 200The tenant served a counter-notice on 28th January 2002, and applied to the Central London County Court for a new tenancy on 8th May 2002.
Under section 29(2) of the 1954 Act, that application had to be made within four months of the service of the section 25 notice. The landlord took the point that, by virtue of section 66(4) of the 1954 Act, the notice was served on 7th January 2002, the date it was put in the post, and therefore the application was out of time and should be struck out. The tenant contended that the provisions of the 1954 Act resulted in the notice being served on the date it was actually received, 9th January 2002, and therefore the application for a new tenancy was in time.
Very sensibly, the parties agreed that that dispute should be determined as a preliminary issue, and it came before HHJ Cotran on 21st January 2003. He concluded that the tenant's argument was to be preferred, and that, in those circumstances, the application was valid and should not be struck out. The landlord now appeals that decision.
I turn to the relevant statutory provisions are concerned. Section 66(4) of the 1954 Act provides:
"Section twenty-three of the Landlord and Tenant Act, 1927 (which relates to the service of notices) shall apply for the purposes of this Act."
Section 23(1) of the 1927 Act ("section 23") is in these terms:
"Any notice request demand or other instrument under this Act 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 or Wales or by sending it through the post in a registered letter addressed to him there and in the case of a notice to a landlord the person on whom it is to be served shall include any agent of the landlord duly authorised in that behalf."
I interpose to make two points. First of all, the place of abode includes place of business –see Price v. West London Investment Building Society [1964] 1 WLR 616. Secondly, the Recorded Delivery Service Act 1962 effectively extends any statutory provision such as section 23 of the 1927 Act, which deals with delivery by a registered letter to delivery by recorded delivery.
Section 7 of the Interpretation Act 1978 ("section 7"), which is effectively identical to section 26 of the Interpretation Act 1889, which it replaced, is in the following terms:
"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, pre-paying 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."
The arguments which have been addressed before me are in summary as follows. The landlord contends that the effect of section 23 is that, if a notice is posted by recorded delivery, then it is irrevocably deemed to have been received on the date of posting. The tenant contends either (a) that there is an implied term under section 23 that such a notice is irrevocably deemed to have been served when it would have been received in the ordinary course of post, or (b) that section 23 is to be read as effectively subject to section 7.
The effect of the landlord's argument is that the section 25 notice in this case was served on 7th January 2002, so that the tenant's application for a new tenancy made on 8th May 2002 was out of time, and this appeal should be allowed. The effect of the tenant's first contention is that the notice is irrevocably deemed to have been served on 8th January 2002 (if the ordinary course of post would have involved receipt the day following posting) so that the application was just in time made, namely, on the last possible day. The effect of the tenant's alternative contention is that the notice would be deemed to have been served on 8th January 2002 unless the contrary has been proved. In this case it has been proved, so that the notice is deemed to have been served on the date it was received, 9th January 2002, and therefore the application was made in time.
The precise point at issue in the present case, namely, the deemed date of service, has not been the subject of any decision, albeit it has been the subject of one observation in the Court of Appeal. However, there are a number of cases to which I have been referred where the court has been concerned with the effect of section 23. Miss Siri Cope, who appears on behalf of the landlord, contends that those cases establish the proposition that, if a notice is posted by recorded delivery and addressed to the recipient at his "place of abode", then it is irrevocably deemed to have been served on the addressee by virtue of the posting.
I accept her submission that, if the effect of section 23 is that where a notice is sent through the post by recorded delivery to the addressee at his place of abode it is irrevocably deemed to have been served, then it follows that service is deemed to have been made on the date the notice was put in the post for recorded delivery, and not the date of actual receipt.
There are five reasons for this conclusion, albeit that the reasons may overlap. First, section 23 describes three alternative permitted methods of service, personal service, service at the premises, and service through the post by recorded delivery. The first two options clearly envisage service occurring at the moment that it is described as effected, i.e. the moment of personal service in the one case, and the moment the notice is left at the premises in the other case. Accordingly, logic strongly suggests that, if the act of posting of the notice by recorded delivery effects service, then the moment at which the notice is put in the post is the moment at which service is effective.
Secondly, if the effect of the authorities is as contended for by Miss Cope, the actual receipt of the notice plays no part in the role of service of the notice under section 23. Accordingly, if the vital action is posting the notice, actual receipt of the notice is irrelevant. It would seem to me to follow that it is the act of posting, rather than the act of receipt, that is vital for the purpose of determining the moment of service.
Thirdly, if an addressee could say that a notice was received very late, he would be better off than an addressee who never received the notice at all: the addressee who received a notice very late could rely on the date of late receipt as the date of service, but the addressee who never received the notice could not rely on the fact that he had never received the notice, and would be bound to accept that service was effected on posting (or in the ordinary course of post, if the tenant's case is correct).
Fourthly, if an addressee was permitted to contend that a notice sent by recorded delivery, but which was actually received many months later, was served at the date of actual receipt, that would take away much, perhaps most, of the intended effect of section 23 if, as I say, the presumption under which I am proceeding is correct, namely, that section 23 deems service to be effective by post. Fifthly, my view is supported by an observation in the Court of Appeal and in Woodfall on Landlord and Tenant (which I quote below).
Accordingly, it is necessary for me to consider whether section 23 has the effect for which Miss Cope contends, namely, that service is irrebuttably deemed to have been effected when the notice, addressed to the addressee at the right premises, is put in the post through recorded delivery.
That point raises an issue of statutory construction. Although one would therefore normally go straight to the statutory provisions, the state of the authorities, and Miss Cope's understandable reliance on them, means that I should start with those authorities.
In Chiswell v. Griffon Land and Estates Limited [1975] 1WLR, 1181, a notice under the 1954 Act had been sent by ordinary post. Accordingly, the observations of Megaw LJ at 1188G to 1189B were obiter. They were as follows:
"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...
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