Freetown v Assethold Ltd (Respondent/Claimant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rix,Lord Justice Patten,The Chancellor of the High Court |
| Judgment Date | 14 December 2012 |
| Neutral Citation | [2012] EWCA Civ 1657 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 December 2012 |
| Docket Number | Case No: B2/2012/1386 |
[2012] EWCA Civ 1657
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
THE HONOURABLE MRS JUSTICE SLADE DBE
QB/2010/0010
Royal Courts of Justice
Strand, London, WC2A 2LL
The Chancellor of the High Court
Lord Justice Rix
and
Lord Justice Patten
Case No: B2/2012/1386
Mr Tom Weekes (instructed by The Chancery Partnership) for the Appellant / Defendant
Mr David Nicholls (instructed by Greenwood & Co) for the Respondent / Claimant
Hearing dates : Thursday 15 th November 2012
This appeal concerns the familiar question of whether a notice required under provisions of a statute concerned with real property becomes effective when posted or when received. It does so in the context of the Party Wall etc Act 1996 (the "Act") and in particular the sending out of a Party Wall award to the parties to a party wall dispute. Under section 10(17) of the Act, a party has 14 days from service of the award to appeal to the county court, and there is no discretion to extend time. On the facts, the issue is critical to whether an appeal is in time or not. The judges below, Mr Recorder Hochhauser QC in the county court and Mrs Justice Slade in the high court, each held that the service of the award was effective from the date of posting. In doing so, they applied the learning of C A Webber (Transport) Ltd v. Railtrack plc [2004] 1 WLR 320, a decision of this court on section 23(1) of the Landlord and Tenant Act 1927 ("LTA 1927"), where the question of service arose in the context of registered post. In sum, the essential question is whether or not section 7 of the Interpretation Act 1978 applies in order to clarify that the relevant time is that of receipt (or deemed receipt), not sending. In Webber it was held that section 7 was excluded from application by the contrary intention to be found in the provisions of the LTA 1927. Does that reasoning apply to the Act?
The facts
The appellant is Freetown Limited, the freeholder of property known as 12 Westport Street, London E1. The respondent is Assethold Limited, the long lessee of property known as 4 Westport Street, which is immediately adjacent to the south of Freetown's property. On 20 January 2011 Freetown served notices under the Act in relation to development work it intended to carry out on 12 Westport Street. That led to a party wall dispute between the neighbours. Each appointed a surveyor who selected a third surveyor pursuant to section 10(1) of the Act. The third surveyor made an award dated 22 July 2011.
The award was posted by the third surveyor on either Friday 22 July or Saturday 23 July 2011. It was received by Freetown on Monday 25 July 2011. Freetown's appeal was lodged on 8 August 2011. If the award was served within the meaning of the Act when it was posted, then the 14 days for appealing ran out on Thursday 4 or Friday 5 August 2011. If, however, time only began to run from the day the award was received by Freetown, then the 14 days ran out on only Sunday 7 August 2011, when the court office was closed. On that basis, time became extended to the next working day, viz 8 August 2011, under the rule in Mucelli v. The Government of Albania [2009] UKHL 2, [2009] 1 WLR 276. On that basis, Freetown would have been in time in its appeal lodged on that day. So far, these matters are common ground.
The Party Wall etc Act 1996
The Act provides by section 10 as follows:
"(15) Where an award is made by the third surveyor –
(a) he shall, after payment of the costs of the award, serve it forthwith on the parties or their appointed surveyors; and
(b) if it is served on their appointed surveyors, they shall serve it forthwith on the parties…
(17) Either of the parties to the dispute may, within the period of fourteen days beginning with the day on which the award made under this section is served on him, appeal to the county court against the award…"
Section 15 of the Act makes provision for the service of notices or other documents required to be served, such as the award:
"(1) A notice or other document required or authorised to be served under this Act may be served on a person –
(a) by delivering it to him by person;
(b) by sending it by post to him at his usual or last-known residence or place of business in the United Kingdom; or
(c) in the case of a body corporate, by delivering it to the secretary or clerk of the body corporate at its registered or principal office or sending it by post to the secretary or clerk of that body corporate at that office.
(2) In the case of a notice or other document required or authorised to be served under this Act on a person as owner of premises, it may alternatively be served by –
(a) addressing it "the owner" of the premises (naming them), and
(b) delivering it to a person on the premises or, if no person to whom it can be delivered is found there, fixing it to a conspicuous part of the premises."
Section 23 of the LTA 1927 provides:
"(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, or, in the case of a local or public authority or a public utility company, to the secretary or other proper officer at the principal office of such authority or company, 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."
The Recorded Delivery Service Act 1962 extends any statutory provision such as section 23 dealing with registered post so as to encompass delivery by the process of recorded delivery. I will refer generally to registered post as a convenient short-hand and as including recorded delivery. In any event, on the facts of this case we are not concerned with such forms of post at all.
It may be observed that the question could arise as to whether section 23(1) sets out the exclusive alternative means of service for the purposes of the LTA 1927, or whether the methods specified are merely permissive (among others). That question arose in Stylo Shoes Ltd v. Prices Tailors Ltd [1960] Ch 396, where Wynn-Parry J decided the issue in favour of a permissive interpretation, at 405–406. That was confirmed, by this court, in Galinski v. McHugh [1988] 57 P&CR 359 at 365. It is for this reason that the section 23 methods of service have sometimes been spoken of as the "primary methods of service", as in the edition of Woodfall, Landlord and Tenant cited by Peter Gibson LJ in this court in Webber v. Railtrack at [26].
Interpretation Act 1927
Section 7 of the Interpretation Act 1927 , headed "References to service by post", 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."
Webber v. Railtrack
This court's decision in 2003 in Webber v. Railtrack was, and remains, the latest in a line of jurisprudence on the meaning of "sending it through the post in a registered letter" in section 23(1) of the LTA 1927. Some but by no means all of that jurisprudence also considers the interrelationship of that provision with section 7 of the Interpretation Act 1927.
The issue in Webber arose in the following way. A landlord sent his tenant notices pursuant to section 25 of the Landlord and Tenant Act 1954 ("LTA 1954"), to inform him that he would oppose the grant of new tenancies. Such a notice had to be sent not less than six months before the specified date of termination, here 22 January 2002. The notices were posted by recorded delivery on 20 July 2001, received on 23 July, and responded to on 24 July to the effect that the tenant was unwilling to give up possession. Subsequently the tenant sought a declaration that the landlord's notices had been served out of time because received within the six month period. So the question whether service was effected by posting or by receipt was again critical. Section 66(4) of the LTA 1954 applied section 23 of the LTA 1927 to the question. This court held that section 7 of the Interpretation Act was excluded, that service was effected by posting by recorded delivery, and that such an interpretation was compatible with article 6 of the European Convention on Human Rights (ECHR), as well as to article 1 of its First Protocol.
The essence of the reasoning was that the matter had been decided by the weight of authority, and particularly by the decision in this court in Galinski v. McHugh (1988) 57 P&CR 359: section 23 afforded three primary, alternative, methods of service, each of which was equally effective when performed. It followed that posting by registered post was effective at the time the registered letter was put into the post, and that section 7 of the Interpretation Act was necessarily excluded.
In Galinski, Slade LJ, delivering the judgment of the court, had said (at 365):
"In our judgment, the object of…[section 23(1)]…is not to protect the person upon whom the right to receive...
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