CA Webber (Transport) Ltd v Network Rail Infrastructure Ltd (formerly Railtract Plc)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON:,LORD JUSTICE LONGMORE |
| Judgment Date | 15 July 2003 |
| Neutral Citation | [2003] EWCA Civ 1167 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 July 2003 |
[2003] EWCA Civ 1167
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WANDSWORTH COUNTY COURT
(Mrs Recorder Bickford-Smith)
Lord Justice Peter Gibson
Lord Justice Longmore
MR A TANNEY (instructed by William Heath & Co, London W2 1PX) appeared on behalf of the Appellant.
MR R TAGER QC and MR J KITSON (instructed by Thomas Eggar, London EC4A 3JB) appeared on behalf of the Respondents.
Tuesday, 15th July 2003
This is the latest in a long line of cases in which the effect of a statutory deeming provision relating to service of a document has fallen to be examined. All such provisions are capable of working hardship by deeming that which did not in fact occur to have occurred. Some provisions allow for the deemed effect to be rebuttable by evidence to the contrary. Others do not.
The context in which the present dispute arises is the service of a notice relating to a tenancy protected by Part II of the Landlord and Tenant Act 1954 ("the 1954 Act").
On Friday 20th July 2001 the defendant, Railtrack Plc ("Railtrack"), as landlord of the claimant, CA Webber Transport Ltd ("Webber"), under two business tenancies of adjoining parcels of land in Battersea caused to be sent to Webber notices pursuant to section 25 of the 1954 Act with covering letters. They indicated that the tenancies would be terminated on 22nd January 2002 and that Railtrack would oppose the grant of a new tenancy under ground (f) in section 31 of the 1954 Act because it intended to redevelop (amongst other parcels of land) the tenanted land. The letters were dated 20th July 2001, were marked "recorded delivery" and were handed over, together with their enclosures, on the same day to the Royal Mail for recorded delivery. Webber, by arrangement with the Post Office, does not receive post on a Saturday. However, it could have cancelled the arrangement, in which case post would have been delivered on a Saturday and that would include letters sent by recorded delivery. Webber received the letters and notices on either Monday, 23rd July, or Tuesday, 24th July, the latter date being when Webber replied to the letters and notices. Webber indicated that it was not willing to give up possession of the two properties. On 6th November 2001 proceedings were commenced for a declaration that the notices were invalid and of no effect because they were served on 23rd July 2001, that is less than six months before the date of termination specified in the notice, and so failed to conform with the requirements of section 25(2) of the 1954 Act.
The proceedings came before Mrs Recorder Bickford-Smith QC in the Wandsworth County Court. She said that there were two issues for her to decide:
(1) whether a notice under section 25 sent by recorded delivery post is deemed to be served when posted or when it would be received in the ordinary course of post;
(2) whether the section 25 notices posted on 20th July 2001 would have been delivered in the ordinary course of post on Monday 23rd July.
The Recorder on 17th April of this year, in a full and careful judgment in which she examined the authorities in detail, held (not without hesitation) on the first issue that a notice under section 25 sent by recorded delivery post is deemed to be served when posted. That was on the basis that section 7 of the Interpretation Act 1978 ("the 1978 Act") did not apply to this case, but, if contrary to that conclusion, section 7 did apply, the Recorder held on the second issue that the notices would have been delivered on Saturday, 21st July, not Monday, 23rd July 2001. Webber appeals to this court with the permission of the Recorder who said that the case raised an important point of principle, there being a great many notices served under section 25 and similar notices under other statutes. She directed a leap-frog appeal to this court pursuant to CPR 52.14.
It is, I think, common ground between the parties that the contractual provisions, to which we have not been referred, in the two leases do not assist in the determination of the issues. It is on the true construction of the relevant statutory provisions that the issues fall to be decided.
Those provisions are the following. Section 25(1) of the 1954 Act allows a landlord to terminate a business tenancy by a notice given to the tenant in the prescribed form, specifying the date at which the tenancy is to come to an end. Section 25(2) provides that a notice under the section shall not have effect unless it is given not more than 12, nor less than six, months before the date of termination specified therein. Section 66(4) of the 1954 Act provides that section 3 of the Landlord and Tenant Act 1927 ("the 1927 Act") shall apply for the purposes of the 1954 Act.
Section 23 is in this form so far as material:
"(1) 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 belief."
It is not in dispute that the place of abode for the purposes of section 23 includes the place of business (Price v West London Investment Building Society [1964] 1 WLR 616). It is also clear from section 1 of the Recorded Delivery Service Act 1962 that reference to delivery by a registered letter includes delivery by recorded delivery.
Section 7 of the 1978 Act provides:
"References to service by post
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 a 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."
Thus, where section 7 applies, a rebuttable presumption arises as to the time of delivery.
Mr Anthony Tanney puts Webber's case in three ways. His primary submission is that the language of section 23 of the 1927 Act and section 7 of the 1978 Act is clear, and that there is nothing in section 23 to indicate a contrary intention to section 7 applying to section 23. He points out that that is what this court in Lex Service Plc v Johns [1991] EGLR 92 appears to have assumed. That, he says, means that the date of receipt is governed by section 7 and that Railtrack's notice was not received in the ordinary course of post until it was too late. He further argues that the authorities leave this court free to follow Lex Service.
His secondary submission is that if he is wrong on the application of section 7 to section 23, the reference in section 23 to "sending through the post" should be construed as requiring an attempt to deliver or actual delivery.
His third submission is a point not taken below but to the taking of which no objection is raised by Railtrack. It is that section 3 of the Human Rights Act 1998 requires the court, so far as possible, to give effect to section 23 in a way which is compatible with rights under the European Convention on Human Rights. He submits that two Convention rights are involved, Article 6, conferring the right to a fair trial, which includes access to the courts, and Article 1 of the First Protocol, protecting the right of property. He says that this argument lends support to his primary and secondary submissions.
For Railtrack Mr Romie Tager QC, appearing with Mr Justin Kitson, supports the decision of the Recorder and by a Respondent's Notice takes further points of which the most significant is that this court is bound by the decision of the Court of Appeal in Blunden v Frogmore Investments Ltd [2002] 2 EGLR 29 to hold that section 7 has no application to section 23. I shall consider Mr Tanney's three submissions in turn.
(I) Section 7
In the absence of authority, Mr Tanney's simple submission that section 23 contains nothing to exclude the applicability of section 7 would be well arguable. However, in the light of the authorities, several of them in this court, it seems to me impossible that Mr Tanney's first submission should prevail. There are nine decisions to which I shall refer.
(1) Sun Alliance & London Assurance Company Ltd v Hayman [1975] 1 WLR 177. In that case the question was whether a notice by the landlord, not in the prescribed form, was substantially to the like effect as the prescribed form. The prescribed form required the tenant to notify the landlord, within two months after the giving of the notice by the tenant terminating the tenancy, whether the tenant would be willing to give up the tenancy. The notice which was sent referred to "two months after receipt of the landlord's notice". The tenant argued that there was a real difference between giving the notice under section 23 and its receipt. Stephenson LJ disagreed. He said at page 183:
"In my judgment, the effect of s66(4) of the 1954 Act is that a notice under the provisions of the Act is both given and received when it is served in accordance with s23(1) of the 1927 Act, and to anyone who knows the law, the time when it is given and the time when it is received...
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