Section 7 Interpretation Act 1978 applies only where the underlying statute expressly authorises service “by post” — and contractual notice clauses can deem receipt of statutory documents

Introduction

In Khan & Anor v D’Aubigny [2025] EWCA Civ 11 the Court of Appeal (Nugee LJ, with Newey LJ and Cobb J agreeing) resolved a long-unsettled question about section 7 of the Interpretation Act 1978 (IA 1978). The Court held that section 7 — the familiar “postal service” deeming provision — applies only where the relevant statute or statutory instrument itself expressly authorises or requires service “by post.” It is not engaged merely because a statute uses language such as “give,” “serve,” or “send” without mentioning post.

Despite finding that section 7 did not apply, the Court dismissed the tenant’s appeal because a broadly drafted contractual notices clause in the assured shorthold tenancy (AST) deemed a landlord’s covering letter (enclosing an EPC, Gas Safety Record, and “How to Rent”) to have been received two working days after posting. That contractual deeming provision, unlike section 7, was not rebuttable, and it satisfied the statutory pre-conditions to a valid section 21 notice.

Case Overview

Parties and posture:

• Respondents (landlords): Dr Kameel Khan and Mrs Julia Randell‑Khan
• Appellant (tenant): Mrs Elena D’Aubigny
• Intervener: National Residential Landlords Association (written submissions)
• Appeal: Second appeal from the County Court at Wandsworth; first-instance possession order upheld on first appeal; tenant’s second appeal dismissed by the Court of Appeal.

Background:

• Mrs D’Aubigny has occupied the flat since 2002; in 2018 the landlords granted her an AST under a Family Court consent order.
• The fixed term ended on 31 January 2020 and was followed by a statutory periodic AST (s.5(2), s.19A Housing Act 1988).
• Landlords served a section 21 notice on 17 March 2020. The tenant accepted receipt of the s.21 notice but denied receiving the EPC, Gas Safety Record (GSR), and “How to Rent.”
• Key issue: Could the landlords rely on section 7 IA 1978 to deem service of the EPC, GSR and “How to Rent” after posting? Alternatively, did the tenancy’s clause 13.2 deem receipt of a “notice … under or in connection with” the agreement sent by first class post to the property?

Summary of the Judgment

The Court of Appeal held:

• Section 7 IA 1978 does not apply unless the statutory provision in question itself expressly authorises or requires service “by post.” It does not bite where the provision merely says a document must be “given,” “served,” or “sent,” without mentioning post.
• Contractual deeming clause applies. The tenancy’s clause 13.2 and 13.3.2 (deeming receipt two working days after posting) covered a formal written notification sent “in connection with” the tenancy. The covering letter enclosing the EPC, GSR, and “How to Rent” was such a notice. As a result, the documents were deemed received before the section 21 notice was served.
• Common law presumption. Had it been necessary, the court would also have found that the common law presumption of postal delivery was not rebutted on the judge’s unappealed findings, but the case was decided on the contractual deeming clause.
• Appeal dismissed. The possession order stands.

Analysis

1) Precedents and Provisions Considered

The Court’s holding on section 7 IA 1978 rests on both text and authority:

• Section 7 IA 1978 (re-enacting section 26 IA 1889) addresses “References to service by post” and deems service effected by proper addressing, prepaying, and posting — “unless the contrary is proved.”
• Historic framing: Section 26 IA 1889 was headed “Meaning of service by post” — underscoring that the mechanism applies where the underlying statutory regime itself provides for service “by post.”
• Postermobile plc v RBKC (2000) 80 P&CR 524 (QB Div Ct): s.7 not engaged where the regulation did not set out the manner of service or refer to post.
• Moviestar Trade Mark [2005] RPC 26 (Arnold QC as Appointed Person): doubted s.7 applied where neither the Act nor the rules expressly authorised postal service; even if s.7 could apply, a contrary intention may appear.
• Southwark LBC v Akhtar [2017] UKUT 150 (LC): s.7 “is not engaged where nothing is said about service by post.”
• Newcastle CC v Abdallah [2024] UKUT 140 (LC): s.7 applies where other legislation (e.g., s.233(2) Local Government Act 1972; s.196 Law of Property Act 1925) expressly authorises postal service.
• Freetown Ltd v Assethold Ltd [2012] EWCA Civ 1657: dicta suggesting s.7 provides a general code for “sendings by post,” but the underlying statute there expressly authorised postal service; it does not answer the present question.
• UKI (Kingsway) Ltd v Westminster [2018] UKSC 67, [2019] 1 WLR 104: “give” means cause to be received; “serve” and “give” used interchangeably in case law. This establishes that posting can be a permissible method of giving, but says nothing about s.7’s deeming rule unless post is statutorily authorised.
• Calladine‑Smith v Saveorder [2011] EWHC 2501 (Ch): on “unless the contrary is proved,” proof is by ordinary civil standard; mere assertion is not conclusive, but addressee need not prove what happened to the letter.
• Haywood v Newcastle upon Tyne NHSFT [2018] UKSC 22: majority in employment context held “notice” given when read or reasonably could be read; dissent viewed delivery sufficient. The case illustrates debates about when “giving” occurs, but does not bear directly on s.7’s scope.
• Gresham House Estate Co v Rossa Grande [1870] WN 119 and Banerji v Roy AIR 1918 PC 102: common law presumption that properly addressed, prepaid, posted letters are received in ordinary course; strengthened where registered and signed for; rebuttable.
• Griffiths v TUI (UK) Ltd [2023] UKSC 48: if a party wishes to challenge a witness’s evidence on a material point, the challenge must be put in cross‑examination.

Surrounding statutory framework:

• Housing Act 1988 s.21: landlord’s “no-fault” possession route, contingent on compliance with prescribed requirements.
• Deregulation Act 2015 ss.21A–21B; AST Notices Regulations 2015 regs 2–3: preconditions — EPC, GSR, and “How to Rent” must be “given”/“provided.” For “How to Rent,” reg 3(3) permits hard copy or email (if the tenant has agreed to email for service).
• Energy Performance of Buildings Regulations 2012 reg 6(5): EPC “has been given … to the person who ultimately becomes the … tenant.”
• Gas Safety (Installation and Use) Regulations 1998 reg 36(6): GSR “is given” to tenants within specified times.

2) The Court’s Legal Reasoning on s.7 IA 1978

The central interpretive question was whether s.7’s opening words — “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)” — encompass any statutory provision that uses “serve/give/send,” or only those which themselves refer to service “by post.”

The Court preferred the narrower construction for four main reasons:

• Heading and function of the IA. Section 7 sits within an interpretation code and is headed “References to service by post.” Its predecessor, s.26 IA 1889, was titled “Meaning of service by post.” This strongly indicates s.7 is engaged only when the underlying statute or instrument itself refers to service “by post.”
• Textual coherence. If Parliament had intended s.7 to apply whenever any statute used “serve/give/send” (irrespective of post), the words “by post” in s.7 would be otiose. On the Court’s reading, they are the trigger: s.7 supplies a default deeming rule only where post is expressly in play.
• Drafting technique. Numerous statutes expressly authorise postal service (e.g., s.233(2) LGA 1972; s.196 LPA 1925; s.115 TMA 1970; s.99(1)(b) LRHUDA 1993). Where drafters feared uncertainty, they sometimes expressly modified or disapplied s.7. Those later drafting choices cannot rewrite s.7’s true scope and are explicable as caution rather than as an indicator of law.
• Case law consistency. The limited authorities (Postermobile; Moviestar; Akhtar) point in the same direction: s.7 is not engaged where the relevant provision says nothing about service “by post.”

Applying that rule here, the EPC, GSR, and “How to Rent” obligations require the landlord to “give”/“provide” the document but do not themselves authorise postal service. Therefore, s.7 IA 1978 did not apply.

3) Contractual Deeming of Service: What counts as a “notice”?

The tenancy agreement’s clause 13 provided that any notice sent to the tenant “under or in connection with” the agreement would be deemed received two working days after posting to the property. The key issues were:

• Is a covering letter enclosing the EPC, GSR and “How to Rent” a “notice”?
• Is it sent “under or in connection with” the tenancy?

The Court held “yes” on both:

• “Notice” bears its ordinary meaning of a formal written notification for a formal purpose in the landlord–tenant relationship. It is not confined to documents labelled “notice” or to documents that immediately alter legal rights.
• The letter and enclosures were formal notifications of matters the landlord was legally required to provide to the tenant, plainly connected to the tenancy (both because the duties arise out of the residential letting and because compliance is a statutory precondition to serving a s.21 notice).

Because clause 13.3.2 created an irrebuttable contractual deeming of receipt on the second working day after posting, the Court treated the documents as received. That was sufficient to satisfy the preconditions to a valid section 21 notice.

4) The Common Law Presumption (alternative reasoning)

The Court observed that even without s.7, a rebuttable common law presumption deems a properly addressed, prepaid, posted letter to be received in the ordinary course of post (Gresham House; Banerji). The first instance judge had found, on the evidence, that the tenant’s bare denial did not rebut the presumption. Although the Court of Appeal expressed unease about reaching such a conclusion without any challenge to the tenant’s credibility (noting Griffiths v TUI), the tenant had not appealed that finding; consequently, if necessary, the same conclusion would have followed under the common law presumption.

Impact and Significance

A) The new rule on section 7 IA 1978

The decision settles a point that had remained uncertain for over a century. The rule is now clear:

• Section 7 IA 1978 applies only where the statute or statutory instrument expressly authorises or requires service “by post.”
• If the provision merely requires a document to be “given,” “served,” or “sent,” s.7’s deeming does not apply.

Practical consequences:

• Housing. For EPCs, GSRs, and “How to Rent” under the current regulations, landlords cannot rely on s.7’s rebuttable deeming rule. They must either prove actual receipt (including by leveraging the common law presumption) or rely on contractually agreed notice mechanics that deem receipt.
• Across regulatory fields. Any regime which merely says “give,” “serve,” or “send,” without mentioning post, will not automatically benefit from s.7. By contrast, regimes that include their own “post” authorisation (or import one from a general provision like s.233 LGA 1972 or s.196 LPA 1925) can still invoke s.7.
• Legislative drafting. Drafters seeking the benefit of s.7 should include an express authorisation to serve “by post.”

B) The reach of contractual notice clauses

The judgment gives robust, practical effect to broadly drafted tenancy notice clauses:

• “Notice” in a bilateral notice clause can include a covering letter conveying statutory material that landlords are obliged to give tenants, even if the enclosed documents are not themselves called “notices.”
• Where the clause deems receipt on posting (and does not allow rebuttal), the court may treat the documents as received for purposes of satisfying statutory preconditions, unless the statute evinces a contrary intention.

Cautionary notes:

• The Court expressly did not decide whether parties may “contract out” of statutory requirements demanding actual receipt; rather, it treated the contractual deeming provision as establishing receipt on the facts between the parties.
• In consumer ASTs, fairness controls under the Consumer Rights Act 2015 may be relevant to the enforceability of onerous deeming terms; that issue was not argued here (the tenancy terms were accepted via a Family Court consent order).

C) Litigation and evidential strategy

The court’s discussion offers several practice pointers:

• Evidence of posting and delivery. Keep contemporaneous posting receipts and, if possible, tracking evidence and signed delivery records. The common law presumption is strengthened by proof of registered/recorded delivery.
• Witness handling. If a party intends to challenge an opponent’s assertion of non-receipt, credibility must be put in issue in cross‑examination (Griffiths v TUI).
• Contractual scaffolding. Include comprehensive notices clauses in ASTs defining “notice” broadly and deeming receipt on service methods (post, hand delivery, email), subject to statutory limits and fairness controls.
• Email provision. For “How to Rent,” landlords may use email only if the tenant has notified an email address for service (AST Notices Regs 2015, reg 3(3)). Obtain this consent expressly in the tenancy.

Complex Concepts Simplified

• Section 7 IA 1978: A rule that, where an Act authorises service “by post,” service is deemed effective when a letter is properly addressed, prepaid, and posted, and deemed delivered when it would arrive in the ordinary course — unless the contrary is proved. It is a rebuttable delivery fiction, but it only operates if the underlying statute mentions postal service.
• “Give” vs “serve” vs “send”: In ordinary law, to “give” a document means to cause it to be received. “Serve” and “give” are often treated interchangeably. But using those words does not itself trigger s.7; express “by post” wording is needed for s.7.
• Deeming provision: A contractual or statutory rule that treats something as having occurred (e.g., “deemed received” on a date) regardless of what actually happened. Statutory deeming under s.7 is rebuttable; the tenancy’s deeming clause in this case was not.
• Common law presumption of postal delivery: Separate from s.7, the courts presume a properly addressed, prepaid, posted letter is delivered in due course. This presumption is rebuttable by evidence of non-receipt, weighed in the round.
• “Notice” (contractual context): A formal written notification given for a formal purpose within a legal relationship. It is not confined to documents labelled “notice,” and can include letters enclosing information required by law in connection with the tenancy.

Practical Guidance

• Do not assume section 7 IA 1978 applies unless the statute or regulations expressly authorise service “by post.” Check for general service provisions elsewhere (e.g., LPA 1925 s.196; LGA 1972 s.233) that may apply.
• Draft ASTs with:
  • A broad definition of “notice” to include formal notifications and enclosures required by law.
  • Clear permitted methods (post, hand, email) and a deeming mechanism specifying receipt dates for each method.
  • Express tenant consent for email service, to satisfy reg 3(3) for “How to Rent.”
• Operationally:
  • Send statutory documents with a covering letter explicitly headed “Notice: Provision of EPC / Gas Safety Record / How to Rent.”
  • Use recorded delivery and retain posting receipts, tracking data, and any delivery signature.
  • Consider hand delivery with a witness or acknowledged receipt.
  • Maintain an evidence bundle demonstrating the chain of service.
• Litigation:
  • If non‑receipt is asserted, test the evidence in cross‑examination; do not rely on bare submission.
  • Plead both the common law presumption and any applicable contractual deeming clause.

What the Court Did Not Decide

• Whether statutory regimes that demand a document be “given” require actual awareness by the recipient or merely delivery to the address in every context. (Contrast Haywood’s employment setting with landlord‑tenant contexts.)
• Whether a contractual deeming clause could be impugned as unfair under consumer protection law in a typical AST. That issue was not in play.
• Any wider “contracting out” question: counsel expressly abandoned an argument that the parties could not rely on contractual deeming to satisfy statutory “giving” obligations.

Conclusion

Khan & Anor v D’Aubigny establishes two important propositions. First, section 7 of the Interpretation Act 1978 is narrower than commonly assumed: it only applies where the statute or subordinate legislation expressly authorises or requires service “by post.” Simply using the words “give,” “serve,” or “send” is not enough. Second, well‑drafted contractual notice provisions matter. A broad, bilateral clause deeming receipt on posting can operate to establish that statutory documents were “given” to a tenant where the legislation is silent on service mechanics, provided there is no contrary statutory intention.

For practitioners, the message is clear. Do not rely reflexively on section 7 IA 1978. Instead, build and use robust notice provisions, collect proof of posting and delivery, and structure your evidential case to satisfy the common law presumption — or better, to avoid needing it. For legislators and drafters, if postal service (and its deeming rules) are intended, say so expressly. This judgment brings long-needed clarity to the operation of section 7 and will influence service disputes across housing and many other regulated fields.