Tenancy “legal notice” clause as an address “given” for service of possession proceedings under CPR 6.8(a)

1. Introduction

This appeal arose from possession proceedings concerning an assured tenancy of a flat in London. The landlord (Abri Group Limited, formerly “Octavia Housing”) served the claim form at the demised premises. The tenant/appellant (the assured tenant under a 2004 tenancy agreement) later sought to set aside a possession order made at a hearing he did not attend.

The central question was whether the tenancy’s service clause—stating that “any legal notice, or any other communication arising from the Agreement, shall be treated as validly served on the Tenant if posted or delivered to the Premises”—meant the premises was an address “given for the purpose of being served with the proceedings” within CPR r 6.8(a). Subsidiary issues concerned (i) whether service could alternatively be justified under CPR r 6.9, (ii) the approach to evidence on an application to set aside made without oral evidence, and (iii) whether the landlord’s conduct was sufficiently serious to justify setting aside in the interests of justice.

2. Summary of the Judgment

The Court of Appeal dismissed the appeal in full. Asplin LJ (with whom Baker LJ and Newey LJ agreed) held:

• The claim form was properly served at the property under CPR r 6.8(a) because the tenancy clause, properly construed, encompassed “legal proceedings arising from” the tenancy relationship.
• Given that conclusion, the court declined to determine the alternative CPR r 6.9 route, while expressing “serious doubts” about the way the lower courts had analysed that rule.
• The lower court was entitled to infer that the tenant knew of the hearing and failed to act promptly; the appellate court would not interfere with those findings applying the approach in Bank of Scotland Plc v Pereira (Practice Note) [2011] EWCA Civ 241; [2011] 1 W.L.R. 2391.
• The landlord’s criticised conduct did not meet the high bar of “egregious” behaviour warranting setting aside outside the usual framework.

3. Analysis

3.1 The new clarification on service: “any legal notice” includes possession proceedings (CPR r 6.8(a))

The doctrinal significance of the decision lies in its treatment of a familiar tenancy drafting formula. The service clause did not expressly mention “proceedings” in the sub-clause addressing tenant service (though the landlord-service sub-clause referenced section 48 of the Landlord and Tenant Act 1987, which includes “notices in proceedings”). The appellant argued that “legal notice” meant only contractual/statutory notices (e.g., a notice to quit), not a claim form.

The Court of Appeal rejected that narrow construction. Applying orthodox contractual interpretation “in context”, it held that:

• The phrase “any legal notice … arising from the Agreement” is “sufficiently wide” to include service of proceedings seeking possession, because such proceedings are a legal step served by a landlord upon a tenant “qua tenant” and arise from the tenancy relationship created by the agreement.
• Reading the clause as a whole mattered: the landlord and tenant provisions were mirror provisions using the same phrasing; it would be incoherent for identical words to include proceedings in one mirror sub-clause but not the other.
• The reference to section 48 Landlord and Tenant Act 1987 was treated as explanatory/contextual rather than as implying that only an explicit “including proceedings” parenthetical can capture claim forms.
• The overall agreement did not contain any separate bespoke “service of proceedings” clause for the tenant; treating the “service of notices” clause as excluding proceedings would create a surprising gap.
• The nature of assured tenancies supported this reading: since the tenant is ordinarily required to occupy the demised premises as the only or principal home, the premises is the “natural place for service”.

On the CPR architecture, the court emphasised that CPR r 6.8(b) (service on landlords at a section 48 address) and CPR r 6.11 (contractually agreed method/place) are permissive “additional routes”; they do not undermine the conclusion that an address can be “given” for CPR r 6.8(a) purposes by a broadly drafted service clause.

3.2 Precedents cited and their influence

(a) Contractual notices vs service of proceedings

• T&L Sugars Ltd v Tate & Lyle Industries Ltd [2014] EWHC 1066 (Comm)
  Used by the appellant to show that contracts may distinguish between contractual notice regimes and CPR service of proceedings. The Court of Appeal accepted this as a possibility in principle but found it turned on the different wording of that agreement and did not assist in construing the tenancy clause here.
• Learning Curve (NE) Group Ltd v Lewis [2025] EWHC 1889 (Comm)
  Similarly treated as contract-specific: there, the agreement said nothing expressly about service of proceedings. Here, the clause was framed in terms of “any legal notice” arising from the agreement, supporting inclusion of proceedings.
• Ener-G Holdings Plc v Hormell [2012] EWCA Civ 1059; [2013] 1 All ER (Comm) 1162
  The appellant pointed to express wording in that case (“documents which start any legal proceedings”) as an example of what the tenancy lacked. The Court of Appeal treated this as illustrating drafting choices, not as a requirement; the case turned on its own clause structure.

(b) A broader “notice” concept in the tenancy context

• Khan v D'Aubigny [2025] EWCA Civ 11; [2025] Ch. 168
  Although not a service-of-proceedings case, it supported a functional, broad meaning of “notice” in tenancy clauses: something in writing formally notifying the recipient for a legal purpose. The Court of Appeal treated this as consistent with interpreting “legal notice” broadly in the present tenancy.

(c) Set-aside of possession orders made in absence: the governing framework

• Hackney LBC v Findlay [2011] EWCA Civ 8; [2011] HLR 15
  Confirmed that where a possession order is made at a hearing not attended by the defendant, the set-aside power is exercised under the case management provision (now CPR r 3.1(2)(p)) with CPR r 39.3(5) applied by analogy.
• Bank of Scotland Plc v Pereira (Practice Note) [2011] EWCA Civ 241; [2011] 1 W.L.R. 2391
  Provided two critical points: (i) set-aside applications are usually dealt with on written evidence and cross-examination is exceptional; (ii) appellate restraint—findings on written evidence remain findings of fact, and an appellate court should be slow to interfere unless the judge “went wrong in principle”.
• Forcelux Ltd v Binnie [2009] EWCH Civ 854; [2010] HLR 20
  Cited (via commentary and Findlay) for the proposition that, exceptionally, the court may set aside in the “interests of justice” where there is an “unusual and highly compelling factor”, but that this is outside the ordinary r 39.3(5)-by-analogy approach.

3.3 Legal reasoning on evidence and inference (CPR r 39.3(5) by analogy)

The tenant/appellant challenged findings that he knew about the hearing and failed to act promptly, arguing that those findings contradicted “uncontroverted” written evidence and should not be insulated by the usual deference because there was no oral evidence.

The Court of Appeal rejected that framing, applying Pereira directly:

• No cross-examination is the norm in r 39.3 applications; nothing “turned” on its absence.
• The first-instance judge was entitled to decide on the basis that (i) written evidence did not state the critical denial (no awareness of the hearing), and (ii) it was inherently improbable (given the circumstances) that the tenant was unaware.
• The tenant’s witness statement was materially silent on awareness of the hearing date; the solicitor’s statement said the tenant and solicitor were “unaware of the subsequent progress” but did not specifically address knowledge of the hearing. The court treated that silence and surrounding facts as a legitimate basis for inference.

The upshot is a practical reminder: in set-aside applications, precise evidence on the r 39.3(5) criteria—especially when and how the applicant learned of the hearing and order—can be determinative, and “silence” may permissibly be filled by inference.

3.4 “Egregious conduct” and the threshold for exceptional intervention

The appellant sought to recast the case as one of landlord misconduct justifying a set-aside even if r 39.3(5) factors were not made out, relying on the “unusual and highly compelling” language associated with Forcelux Ltd v Binnie and noted in Hackney LBC v Findlay.

The Court of Appeal held the point largely failed on its own terms:

• Some complaints were either new or expanded (including criticism of how the landlord proceeded when there was earlier confusion about whether the tenant had died).
• The “fraud” criticism did not land: “fraud” appeared essentially because relief was sought under the Prevention of Social Housing Fraud Act 2013; it was not necessary to plead “fraud” as a free-standing allegation to claim an unlawful profit order predicated on alleged subletting.
• The landlord’s failure to engage with the tenant’s solicitors before the hearing had already been treated as “regrettable” but not causative of non-attendance given the factual finding that the tenant knew of the hearing and should have ensured attendance.
• Overall, even taken cumulatively, the conduct fell well short of “egregious”, a term the court stressed is “very strong”.

3.5 Impact

• Tenancy drafting and litigation practice: Clauses stating that “any legal notice” (and analogous formulations) served at the demised premises will likely be treated as an address “given” for CPR r 6.8(a) purposes for claims “arising from” the tenancy relationship, including possession claims.
• Service disputes: The decision reduces the scope for technical challenges where the contract contains a broad service clause, even if it does not expressly refer to “proceedings”, provided the wording and context support that meaning.
• CPR r 6.9 uncertainty remains: Although the court expressed “serious doubts” about the lower courts’ approach to r 6.9, it did not resolve that issue. Future cases may still need to address when a claimant has “reason to believe” the defendant no longer resides at an address and what “reasonable steps” must then be taken.
• Set-aside applications: The judgment reinforces the evidential discipline required by Pereira: written evidence must squarely address (a) knowledge and timing, (b) reasons for non-attendance, and (c) promptness; otherwise the court may infer against the applicant.

4. Complex concepts simplified

4.1 CPR r 6.8(a) vs CPR r 6.9

• CPR r 6.8(a) allows service at an address in the UK where the defendant resides/carries on business and which the defendant has given for service of proceedings (often via contract wording).
• CPR r 6.9 is the “default” rule for serving an individual where no “given” address applies; it focuses on the defendant’s “usual or last known residence”, and can require extra steps if the claimant has reason to believe the defendant no longer lives there.

4.2 Section 48 Landlord and Tenant Act 1987

Section 48 requires a landlord to provide the tenant with an address in England and Wales at which the tenant may serve notices on the landlord, expressly including “notices in proceedings”. In this case, that statutory context helped the court read the tenancy’s mirrored notice provisions consistently.

4.3 CPR r 39.3(5) (applied by analogy) in possession cases

Where a possession order is made at a hearing a defendant does not attend, the court generally asks (by analogy with r 39.3(5)): (1) did the defendant act promptly after learning of the order; (2) was there a good reason for not attending; (3) is there a reasonable prospect of successfully defending. These applications are usually decided on written evidence, and judges may draw inferences where evidence is silent or inherently improbable.

5. Conclusion

[2026] EWCA Civ 946 establishes a practically important point for landlord and tenant litigation: a tenancy clause providing that “any legal notice” arising from the agreement is validly served if delivered or posted to the premises can constitute an address “given” for service of claim forms under CPR r 6.8(a), even without explicit reference to “proceedings” in that sub-clause. The Court of Appeal also reaffirmed the Pereira approach to set-aside applications—limited oral evidence, permissive inference-drawing on paper, and appellate restraint—while cautioning (without deciding) that r 6.9 analyses must be handled carefully.