Court of Appeal (Civil Division) — Anonymised Summary

Factual and Procedural Background

This is an appeal from a County Court possession judgment concerning an assured shorthold tenancy ("AST"). The Respondents (the landlords) sought possession of a flat let to the Appellant (the tenant) relying on a notice under section 21 of the Housing Act 1988 ("s. 21"). The Respondents had served the s. 21 notice and the Appellant received that notice, but the Appellant defended the possession claim on the basis that the Respondents had not given or provided to her three documents required by statute before a s. 21 notice could validly be given: (i) an Energy Performance Certificate ("EPC"), (ii) a Gas Safety Record ("GSR"), and (iii) the "How to rent: the checklist for renting in England" document ("How to Rent").

The Respondents' evidence was that their solicitors had posted the EPC, GSR and How to Rent to the Appellant on 3 March 2020. The Appellant said she did not receive them. At first instance the Deputy District Judge ("Judge Davis") found that the documents had been sent, had not been returned, and (relying on s. 7 of the Interpretation Act 1978 ("s. 7 IA 1978")) deemed them to have been served; he also found in the alternative that a clause in the parties' tenancy agreement (clause 13.2) deemed service by post and so granted possession. On first appeal the judge below ("Judge Baucher") upheld the decision on both grounds and said she would have held service established even without the deeming provisions. The Appellant appealed to the Court of Appeal. The appeal was heard by a panel of three judges, with written submissions from an intervener ("Company A").

Legal Issues Presented

1. Whether s. 7 of the Interpretation Act 1978 applies to statutory provisions that require or authorise the giving or provision of documents to a person where those statutory provisions do not expressly refer to such giving or provision being effected "by post".
2. Whether the EPC, GSR and How to Rent (or the letter enclosing them) amounted to a "notice sent to the Tenant under or in connection with this agreement" for the purposes of clause 13.2 of the tenancy agreement, such that clause 13.3.2's deeming provision (service by first-class post deemed received on the second Working Day after posting) applied.
3. Whether, if neither s. 7 IA 1978 nor clause 13.2 applied, the Respondents would nonetheless have proved service at common law through the ordinary rebuttable presumption that a properly addressed and posted letter is received.

Arguments of the Parties

Appellant's Arguments

• Section 7 IA 1978 should not apply to the statutory provisions requiring provision of the EPC, GSR and How to Rent because those provisions do not expressly require or authorise service "by post"; s. 7 only applies where the relevant provision expressly authorises or requires service by post.
• The EPC, GSR and How to Rent were not "notices" for the purposes of clause 13.2 of the tenancy agreement; the tenancy agreement's use of "notice" should be read as limited to documents classically described as notices (for example notices to quit or statutory notices) or at least to items affecting legal rights under the agreement, and the three documents in question did not fall within that concept according to this narrower view.
• Even if clause 13.2 could be read broadly, the documents were provided under statutory provisions rather than "under" the tenancy agreement, and so were not within clause 13.2's scope (this point was pursued in argument but the court regarded "in connection with" as satisfied).
• The Appellant also challenged the finding (made by the lower court) that she had not rebutted any presumption of delivery; she contended that her unchallenged denial of receipt should be sufficient in the unusual hearing context where the trial judge had said he would not make credibility findings.

Respondents' Arguments

• The statutory provisions authorising or requiring that the EPC, GSR and How to Rent be "given" or "provided" to a tenant permit those documents to be given by post; consequently s. 7 IA 1978 was engaged and its statutory deeming presumption applied.
• In any event, clause 13.2 of the tenancy agreement deemed to the parties that notices sent to the tenant by first-class post to the property were properly served and clause 13.3.2 deemed such notices to have been received on the second Working Day after posting; the letter enclosing the EPC, GSR and How to Rent was a "notice sent to the Tenant under or in connection with this agreement" and so the clause applied.
• Even if neither s. 7 nor clause 13.2 applied, the Respondents relied on the common-law presumption (dating back to 19th-century authority) that a properly addressed, pre-paid and posted letter is presumed to have been delivered in the ordinary course of the post, absent proof to the contrary; on the findings that the documents had been posted and not returned, that presumption was not rebutted.

Intervener's Position (Company A)

Company A made written submissions which were before the Court. The written submissions are referred to in the opinion but a detailed account of the intervener's arguments is not provided in the text of the judgment.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court's analysis was delivered principally by Judge Nugee (with concurrence). The court proceeded in a number of steps:

1. Statutory text and context: The Court set out s. 7 IA 1978 and noted that it re-enacts s. 26 IA 1889, both being located in parts of the Interpretation Acts concerned with meaning and construction. The section is headed "References to service by post" and on its face addresses the effect of a statutory provision that "authorises or requires any document to be served by post".
2. Two rival constructions framed: (a) the Respondents' position — s. 7 applies where a statutory requirement uses words such as "serve", "give" or "send" because those expressions permit service by post; (b) the Appellant's position — s. 7 only applies where the statutory provision expressly authorises or requires service "by post".
3. Interpretive approach: The Court emphasised the function of an Interpretation Act (to tell what words used in other statutes mean) and treated the heading and the predecessor provision (s. 26 IA 1889) as indicative of the section's scope: it is concerned with provisions that refer in terms to service "by post". The bracketed words in s. 7 (e.g., "serve", "give", "send") were intended to indicate that different verbs may be used in other provisions but do not themselves transform a provision that merely requires "giving" into one that "authorises or requires service by post".
4. Conclusion on s. 7 IA 1978: The Court concluded that s. 7 IA 1978 applies where the relevant statutory provision refers in terms to service (or giving or sending) "by post". It does not apply to a statutory provision that simply uses the verb "give" (or "send" etc) without an express reference to postal service. The statutory provisions requiring that the EPC, GSR and How to Rent be "given" or "provided" to tenants contain no express reference to post (How to Rent allows hard copy or e-mail in certain circumstances but does not speak of postal service). Therefore, s. 7 IA 1978 did not apply to those provisions.
5. Analysis of clause 13.2 (tenancy agreement): The Court turned to the contractual deeming provision. Clause 13.2 expressed that "Any notice sent to the Tenant under or in connection with this agreement shall be deemed to have been properly served if: 13.2.1 sent by first class post to the Property ...", and clause 13.3.2 deemed first-class post to be received on the second Working Day after posting. The Court considered whether the letter enclosing the EPC, GSR and How to Rent (or those documents themselves) fell within "notice sent ... under or in connection with this agreement". The Court adopted a broad but principled approach to the meaning of "notice": a notice is generally a written formal notification in connection with the parties' legal relationship, used to notify the recipient of something; it can convey information as well as exercise a contractual right.
6. Application of clause 13.2: The Court held that the letter enclosing the EPC, GSR and How to Rent was a "notice" in the sense used in clause 13.2 and was sent "in connection with" the tenancy agreement because the documents had to be given to the tenant by reason of her status as tenant and because giving them affected the parties' legal rights (in that a landlord who had not given them could not validly serve a s. 21 notice). On DDJ Davis's unchallenged findings that the letter had been sent by first-class post to the property and not returned, clause 13.3.2's deeming rule applied and the documents were deemed received on the second Working Day after posting. Importantly, clause 13.3.2 contained no provision for rebuttal; it is a contractual deeming mechanism and not expressed as rebuttable.
7. Common-law presumption (alternative): Although not necessary to decide the appeal (on the Court's view of clause 13.2), the Court addressed the common-law presumption that a properly addressed and posted letter is presumed to have been delivered. The Court reviewed authorities establishing that presumption and concluded that, given DDJ Davis's unappealed factual findings that the documents had been posted and not returned, the common-law presumption would likewise not have been rebutted on the evidence and would have yielded the same result.
8. Credibility / burden: The Court observed the procedural oddity that the trial judge had agreed not to make credibility findings and that the Appellant had denied receipt; the Court expressed reservations about the force of a bare denial in that context but recognised that DDJ Davis's findings on posting were unappealed and therefore binding on the Appellant for present purposes.

Holding and Implications

HOLDING: The Court dismissed the Appellant's appeal. The Court held that s. 7 of the Interpretation Act 1978 does not apply to statutory provisions that merely require or permit a document to be "given" or "sent" where there is no express reference to service "by post"; however, the Court upheld the possession order on the alternative contractual ground that clause 13.2 of the tenancy agreement deemed the letter enclosing the EPC, GSR and How to Rent to have been properly served by first-class post and clause 13.3.2 deemed it to have been received on the second Working Day after posting.

Implications:

• Direct effect: The possession order made below (and stayed pending appeal) is upheld. The Appellant remains liable to the consequence of the possession judgment as determined by the lower courts and affirmed on appeal.
• Interpretation of s. 7 IA 1978: The Court decided a point of construction — that s. 7 is concerned with statutory references to service "by post" and does not automatically apply simply because a statute refers to giving, sending or serving a document without an express reference to post. This is the Court's interpretive conclusion in this case based on statutory text, the heading and the predecessor Act.
• Contractual deeming clauses: The Court confirmed that a contractual deeming clause (such as clause 13.2/13.3.2) which expressly deems service by post to be effective and specifies a deemed date of receipt can be decisive and need not be susceptible to rebuttal unless the clause itself permits it.
• Common-law presumption: The Court observed that, even absent a statutory or contractual deeming provision, the common-law presumption that a properly addressed and posted letter is received can provide an alternative basis for establishing service when the sender proves posting and non-return.
• Broader precedent: The judgment analyses prior authority and reaches a construction of s. 7 IA 1978. The panel expressed its conclusions and the reasons for them in the judgment; the Court of Appeal's decision resolves the question in the reported case on the facts and the statutory construction issues raised. The judgment contains discussion of related authorities and the court's approach to statutory interpretation in this context.

Disposition

APPEAL DISMISSED. The judgment of the County Court (as upheld on first appeal) is affirmed on the alternative basis of the contractual deeming clause; s. 7 IA 1978 was held not to apply to the statutory provisions at issue in this case.

Judges and Representation (Anonymised)

Panel: Judge Nugee (leading), Judge Newey, Judge Cobb.

Lower-court judges appearing in the procedural history: Judge Davis (Deputy District Judge at trial), Judge Baucher (first-instance appeal judge), Judge Bloom (permission to appeal decision noted), Judge Everall (family court judge who approved the Consent Order underlying the tenancy).

Representation:

• For the Appellant: Attorney Westgate KC, Attorney Lee, Attorney Jones (instructed by a solicitor firm).
• For the Respondents: Attorney Bates KC, Attorney Clarke (instructed by another firm).
• For the Intervener (Company A): Attorney Morris (written submissions only).

Availability of Further Detail

This summary is strictly confined to the material contained in the provided opinion. It does not add or infer facts or statements beyond what appears in that text.