Calladine-Smith v Saveorder Ltd
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MORGAN |
| Judgment Date | 05 July 2011 |
| Neutral Citation | [2011] EWHC 2501 (Ch) |
| Court | Chancery Division |
| Date | 05 July 2011 |
| Docket Number | Case No. CH/2011/0110 |
[2011] EWHC 2501 (Ch)
IN THE HIGH COURT OF JUSTICE
(CHANCERY DIVISION)
Royal Courts of Justice,
Strand,
London WC2A 2LL.
Mr Justice Morgan
Case No. CH/2011/0110
MISS GIBBONS(instructed by Thackray Williams, Kings House, 32–40 Widmore Road, Bromley, Kent BR1 1RY) appeared on behalf of the Claimant.
MISS WATERWORTH(instructed by Pritchard Joyce & Hinds, St Brides House, 32 High Street, Beckenham, Kent BR3 1AY) appeared on behalf of the Respondents.
Introduction
This is an appeal by the Claimant Mr Calladine-Smith from a decision of Judge Hallon sitting in the Bromley County Court. The appeal is brought with the permission of the learned Judge. The appeal concerns the interpretation of, and the application of, section 7 of the Interpretation Act 1978. That section 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, 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.'
In very brief summary, the Defendant Saveorder Ltd relies on Section 7 in support of its contention that it had served on the Claimant a counter-notice under Section 45 Leasehold Reform (Housing and Urban Development) Act 1993 ('the 1993 Act'). The Claimant contends that Section 7 allowed him to prove on the facts that the counter-notice had not been served on him and that on the facts he had proved that matter on the ordinary balance of probabilities.
In the course of this appeal it has been necessary to examine Section 7 and some of the many authorities as to its interpretation. The parties do not agree as to the effect of those authorities. Further, two specific points have emerged. Both of the specific points arise out of the words 'unless the contrary is proved' in Section 7. I will put in my own words the questions which have been raised in the course of argument. First, is the 'contrary' the contrary of the allegation that the letter was properly addressed, prepaid and posted and no other matter (as the Defendant contends) or is the 'contrary' the contrary of the deeming provision that the letter in question was delivered in the ordinary course of post (as the Claimant contends)? Secondly, in any event, does the reference to the contrary being 'proved' require no more than evidence which supports a finding on the balance of probabilities that the letter was not delivered (as the Claimant contends) or is there a burden on the addressee of the letter to lead positive evidence as to what happened to the letter and/or a burden on the addressee to show that the sender of the letter was aware that the letter had not been delivered (as the Defendant contends)?
Miss Gibbons appears on behalf of the Claimant/Appellant and Miss Waterworth appears on behalf of the Defendant/Respondent.
Before turning to the facts of the case, it is convenient to refer to the provisions of the 1993 Act. The relevant provisions are contained in Chapter II of Part I of the 1993 Act although it is also relevant to refer to the general provision in Section 99 of that Act. By Section 39(1), Chapter 2 has effect for the purpose of conferring on the tenant of a flat, in the circumstances mentioned in Section 39(2), the right exercisable subject to and in accordance with Chapter 2 to acquire a new lease of the flat on payment of a premium determined in accordance with Chapter 2. There is no dispute about the fact that the Claimant has the right conferred by Section 39(1) to a new lease of a flat where he is currently the lessee. Section 42 is headed: 'Notice by qualifying tenant of claim to exercise right.' Section 42(1) provides for a qualifying tenant to exercise the right to acquire a new lease of the flat by the giving of a notice of the claim under Section 42. By Section 42(2), a notice under that Section must be given relevantly to the landlord. By Section 42(3)(f), the tenant's notice must specify the date by which the landlord must respond to the notice by giving a counter-notice under Section 45. Section 45 is headed: 'Landlord's counter-notice.' Section 45(1) is in these terms: 'The landlord shall give a counter-notice under this section to the tenant by the date specified in the tenant's Notice in pursuance of Section 42(3)(f).'
The 1993 Act then makes provision for what is to happen in relation to the different kinds of counter-notice that a landlord is permitted to serve. For present purposes one can go to Section 49, which is headed: 'Applications where a landlord fails to give counter-notice or further counter-notice.' The relevant part of Section 49 is Section 49(1)(a) which provides that where a tenant's notice has been given in accordance with Section 42 but (a) the landlord has failed to give the tenant a counter-notice in accordance with Section 45(1), the court may on the application of the tenant make an order determining in accordance with the proposals contained in the tenant's notice the terms of acquisition. Section 49(2) provides that the court shall not make an order under Section 49(1) unless it is satisfied of certain matters. Those matters are not, as I understand it, in dispute in the present case.
The operation of Section 49 can be seen by reference to the decision of the Court of Appeal in Willingale v Globalgrange Ltd [2000] 2 EGLR 55. That decision did not itself concern Chapter 2 of Part 1 of the 1993 Act. It concerned equivalent provisions dealing with collective enfranchisement in Chapter 1 of Part 1 of the 1993 Act. In the course of the judgment of Lord Justice May in that case there is a discussion of the operation of Section 49 and indeed an earlier authority in relation to Chapter 2 of Part 1 of the 1993 Act. For today's purposes it is sufficient to say that the parties are agreed that the authority of Willingale v Globalgrange Ltd applies to an application under Section 49 so that if a counter-notice has not been served in the present case by the landlord then the tenant is entitled to the relief which is spelt out in Section 49. I need not further indicate the nature of that relief as the parties are agreed as to the form that that relief would take.
Finally, in relation to the 1993 Act, I need to go to Section 99 dealing with Notices. Section 99(1) reads: 'Any Notice required or authorised to be given under this Part (a) shall be in writing, and (b) may be sent by post.' That is the only provision in the 1993 Act which bears upon – for today's purposes, at any rate – the question of service of a landlord's counter-notice under Section 45 of the 1993 Act.
Before I go to the facts of this case, I ought to contrast the position under the 1993 Act with a different statutory position created by Section 23 Landlord and Tenant Act 1927. Section 23 provides for the mode of service of certain notices and other instruments. This section applies to the service of notices under Part 2 of the Landlord and Tenant Act 1954. Section 23 has been the subject of many decisions of the courts and it will be relevant later in this judgment to refer to one or two of those. Section 23(1) 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.' As I have explained, Section 23 does not apply to a landlord's counter-notice under Section 45 of the 1993 Act, but it is agreed Section 7 Interpretation Act 1978 does apply to such a Notice.
The facts.
The Claimant is the lessee of the flat at 2 Robbins Court, 77 Bromley Road, Beckenham Kent BR3 5PB. On or about 16 th September 2009, the Claimant prepared for service a notice under Section 42 of the 1993 Act. The notice identified the intended recipient as the Defendant. The notice related to the flat at 2 Robbins Court. The Claimant identified himself and specified his address as 77 Cumberland Road, Bromley Kent BR2 0PL. The notice then continued with the information which is appropriate to be included in such a notice. Paragraph 9 of the notice stated that the address in England and Wales at which notices might be given to the Claimant under the statutory provisions was the address at 77 Cumberland Road. Paragraph 10 of the notice is in these terms: 'The date by which you must respond to this notice by giving a counter-notice under Section 45 of the 1993 Act is 25 th November 2009.' The Claimant's Notice was served on or about the date it bore. It is not disputed that para. 10 of the Notice effectively imposed a time limit for a counter-notice of 25 th November 2009 pursuant to Section 42(3)(f) of the 1993 Act.
The Claimant's notice was duly received by the Defendant. The Defendant instructed solicitors to act for it. Those solicitors prepared a form of counter-notice intended to be served under Section 45 of the 1993 Act. The counter-notice which was prepared was addressed to the Claimant at 77 Cumberland Road. It related to the flat at 2 Robbins Court. The...
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