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Blunden v Frogmore Investments Ltd.  EWCA Civ 573 (30th April, 2002)
| || ||Neutral Citation Number:  EWCA Civ 573|
| || ||Case No: A3/2001/0974|
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION (HH JUDGE HOWARTH)
| || ||Royal Courts of Justice|
London, WC2A 2LL
| || ||30 April 2002|
B e f o r e :
LORD JUSTICE SCHIEMANN
LORD JUSTICE ROBERT WALKER
LORD JUSTICE CARNWATH
| || BLUNDEN||Appellant|
| ||- and -|
| ||FROGMORE INVESTMENTS LTD||Respondent|
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
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Mr David Berkley QC and Mr Jonathan Rule (instructed by Norton & Co) for the appellant
Mr Kim Lewison QC (instructed by Dechert) for the respondent
HTML VERSION OF JUDGMENT
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Lord Justice Robert Walker:
- This is an appeal, with the permission of Clarke LJ, from an order of HH Judge Howarth made on 24 January 2001 when he was sitting at Manchester as a judge of the Chancery Division of the High Court. The order dismissed an action by the appellant Mr Mark Blunden against his landlord (or former landlord), Frogmore Investments Ltd (“Frogmore”). The action was dismissed under CPR 24 on the ground that it had no real prospect of success. The only issue on appeal is as to the validity of the service of a notice by Frogmore terminating Mr Blunden’s lease. The notice was served in the aftermath of the IRA bombing of the Arndale Centre in Manchester on 15 June 1996.
- The bomb caused extensive damage not only to the Arndale Centre but also to other buildings in the vicinity, including The Corn Exchange. Mr Blunden had a lease of a retail unit at the Corn Exchange, the postal address of his unit being 51A Fennel Street. He sold sound recordings and books , specialising in old records which are collector’s items.
- The Corn Exchange is a large, listed building of triangular shape, bounded on its three sides by Cathedral Street, Hanging Ditch and Fennel Street. Structurally it consisted (as described in a report dated 10 July 1996 by Oscar Faber Consulting Engineers) of a central market area covered by an extensive glass roof and dome (100 feet high at its apex) carried on a steel framed structure, and a surrounding, structurally separate building on seven floors (subbasement, basement, ground floor and four upper floors).
- Mr Blunden’s lease of the retail premises at no. 51A Fennel Street was granted on 1 March 1995. It was for a term of six years from 29 September 1994 at a yearly rent of £3000, subject to upwards-only review after three years; there were also service changes.
- The lease contained two provisions of central importance to this appeal. Clause 6.4 (headed ‘Termination on destruction’) provided as follows:
“If any destruction or damage shall render the Demised Premises or the Building wholly or substantially unfit for occupation the Landlord may by giving to the Tenant not later than six months after the date of such destruction or damage six months notice in writing determine this Demise but without prejudice to any claim by the Landlord in respect of any antecedent breach of covenant.”
- Clause 6.9 (headed ‘Service of notices’) provided as follows:
“In addition to any other prescribed mode of service any notices requiring to be served hereunder shall be validly served if served in accordance with Section 197 of the Law of Property Act 1925 as amended by the Recorded Delivery Act 1962 or in the case of the Tenant if left addressed to it or if there shall be more than one to any of them on the Demised Premises or sent to it him or any of them by post or left at the last known address or addresses of it him or any of them in Great Britain.”
It is common ground that the reference to s.197 was an obvious error and that s.196 was intended.
- The explosion on 15 June 1996 caused extensive damage to the Corn Exchange, but it became apparent on expert examination that the triangular surrounding building, although needing very extensive repairs (especially to its roofs), was still structurally sound. However the glass roof and dome were severely damaged and the whole building was in a very dangerous state, with large shards of glass in the roof and dome liable to drop into the market area below. Main gas and electricity services were also damaged and had to be cut off. On 28 June 1996 the City Council served on Frogmore a dangerous building notice under s.77 of the Building Act 1984 requiring Frogmore to erect a secure hoarding around the building.
- I need not go further into the detailed evidence in the witness statement and exhibits of Mr Joseph Malvisi (a director of Frogmore Estates plc, Frogmore’s holding company) since it is common ground in this court – although it was not common ground below – that Mr Blunden’s premises, although relatively well shielded from the blast, had been rendered at least substantially unfit for occupation. The only issue in this court is as to service of notice. But it is fair to add that the uncontradicted evidence of Mr Malvisi and of Ms Kay Rowsell (who has worked at the Corn Exchange for 23 years, and is now the General Manager) shows that Frogmore reacted to the bomb damage with energy, efficiency and a proper concern for the interest of its tenants. All its tenants (whether of units in the market area or of premises in the surrounding building) were naturally concerned to secure their trading stock and other possessions, and also to know what was to happen in the future.
- Frogmore arranged for tenants to remove their property as soon as it was safe to do so, with priority given to banks and jewellers whose premises were particularly vulnerable. Ms Rowsell has deposed:
“During these visits Frogmore provided safety wear, transport and also labour to assist the Tenants in removing their goods. I remember that [Mr Blunden] had some difficulty because much of his stock was very heavy and required a substantial amount of labour to transport the goods from his unit, as vehicles could not be brought up close to his unit.”
- Frogmore offered to take surrenders of leases from tenants who wished to surrender, before anyone knew for sure what the future held. At one stage, it seems, Frogmore hoped that the Corn Exchange (as an important listed building in the city centre) could be repaired relatively quickly and without necessarily terminating all the leases. But at the beginning of December 1996 (that is, only about a fortnight before the expiry of six months after the explosion) Frogmore decided to use the power in clause 6.4 of the standard-form lease to terminate the leases of those tenants who had not surrendered.
- Ms Abigail Mitchell, a solicitor with Titmuss Sainer Dechert (Frogmore’s solicitors) prepared a considerable number of notices to be served on tenants. In Mr Blunden’s case (and, I imagine, in the case of all or most of the other tenants) she prepared two notices, a notice under clause 6.4 (embodied in a letter) and a separate statutory notice under s.25 of the Landlord and Tenant Act 1954, terminating the lease and indicating that any application for a new tenancy would be opposed under s.30(1)(f) of the Act (relating to demolition, reconstruction or substantial works). Mr Malvisi deposed that some other tenants did apply to the court for new tenancies, but that all the applications were subsequently discontinued.
- I should now refer to the evidence as to the service of the notice on Mr Blunden. The evidence is to be found in his witness statement and in those of Ms Rowsell and Miss Mitchell. Ms Rowsell has deposed as follows:
“Greta Oakley and Robert Thain had the responsibility of supplying Eric Roseman of Frogmore with a list of addresses of all of the occupants of the building, so that he could [have] correspondence with them after the disaster; this involved liaising with the Town Hall who helped by supplying lists of addresses. Also, I provided them with contact details for the occupants from records that I had managed to retrieve from my seriously damaged office. I did not enter into any correspondence with the tenants myself because my office was so seriously damaged by the blast that I did not have the facilities for this task. I visited the offices of Frogmore's solicitors ... at least four times to go through the Tenants’ leases with Ms Mitchell of that firm with a view to trying to obtain further addresses for the various Tenants. As a result of the bomb there were numerous meetings at the Town Hall, most of which I attended along with either, or both Joe Malvisi and Eric Roseman. At these meetings we tried to expand the list of addresses further by talking to those tenants that were present. I recall it being an extremely long and drawn out process trying to get alternative addresses for all of the Tenants. I managed to find 3 addresses in total for the Claimant, one of which was the demised premises and the other 2 were private addresses. One of the private addresses I had for the Claimant was the latest address given to me by the Claimant. He had at some time told me in conversation that this was the address of a new property that he had purchased.”
- The evidence of Ms Mitchell was that her colleague Kate Wassall posted the letters (embodying the clause 6.4 notice and enclosing the separate s.25 notice) at the Fleet Street Post Office on 4 December. The letters were sent by recorded delivery and certificates of proof of posting were obtained. They were sent to three addresses for Mr Blunden, supplied to Ms Mitchell by Ms Rowsell, that is 51A Fennel Street, 21 Clegg Lane, Little Hulton, Farnworth (the address given in the lease) and 3 Ketton Close, Higher Oppenshaw, Manchester (an address which Ms Rowsell deposed had been given to her by Mr Blunden). However in due course all three letters were returned to the solicitors by the Post Office. In addition, copies of the notices were affixed to the outside of 51A Fennel Street. Ms Rowsell has deposed:
“As I was working at the building with two colleagues at the time, I cannot state with any certainty whether it was I or one of my colleagues who would have placed the said Notices on the Demised Premises. But, I do recall that initially we had to pin [Mr Blunden’s] door back on to its hinges in order to place the Notice upon it. And, I can recollect that all of the Notices that were sent to me by Titmuss Sainer Dechert were dealt with with the utmost care and importance by myself and my colleagues and placed on the premises to which they related as an immediate priority.”
- I will now set out the whole of Mr Blunden’s witness statement so far as it is relevant to the issue of service. After identifying the three addresses to which notices were sent he has deposed:
“At the time of the notices being sent, I was living at 3 Ketton Close.
It was quite impossible for me to receive any mail at 51A Fennel Street. There was security around the area, which was strictly out of bounds to the tenants and the general public. I was not given an opportunity to collect any mail from the premises. This must have been something of which the Defendants were aware. I did not therefore receive any notice at these premises.
With regards to 3 Ketton Close, the course of events was as follows. Around the time that service was said to have been made, I was staying with my brother. When I returned to my house, amongst my mail I had received a notice from the Royal Mail saying that they were holding a registered letter for me at the Post Office. [The exhibit shows that it was in fact recorded delivery.] The time for me to collect the mail had expired, and so I was unable by the time that I actually picked up the Royal Mail’s card, to collect the mail to which it referred. I had no idea who it was from. I assume that the same happened at 21 Clegg Lane, but I am not able to say.
Ms Mitchell says that all three notices were returned to the Defendant undelivered, which is consistent with the above. I am able to say categorically that it was not my intention to avoid the notice. I was not particularly aware of the notice provisions and it would not have occurred to me to have tried to avoid such a notice. It was simply a matter of an unfortunate piece of timing when the notice happened to have been sent, whilst I was away.
With regard to the notice left attached at the premises, again, there was no prospect of me being able to see this, as I was not allowed anywhere near the premises once the notice is said to have been attached. I have been taken through the witness of Ms Mitchell. She says that the notices were sent to her colleague, Kate Wassell, on 4th December 1996. I am able to confirm with certainty that during the period 5th December 1996 to 15th December 1996, I was not allowed onto the premises. The security was such that no possibility of that happening existed. My opportunity to visit the premises to collect such items as I could had occurred prior to this date.
Therefore, it is clear, and it was within the Defendant’s knowledge that this was the case, that I would not see this notice affixed to 51A Fennel Street. I can confirm therefore, that I did not receive any of the notices referred to in Ms Mitchell’s witness statement.”
- The only possible significant area of conflict between these deponents is a statement in Ms Rowsell’s witness statement that at an unspecified date “shortly after the notices were pinned to the demised premises” Mr Blunden was allowed back to 51A, accompanied by two Frogmore personnel and two builders, to allow a potential buyer to view his shop shelving. Mr Blunden’s witness statement (made subsequently) does not refer to this evidence. But for the purposes of an application under CPR 24 I would assume that this point might be resolved in Mr Blunden’s favour, and that the issue of notice should be approached on the basis of four assumptions of fact put forward by Mr David Berkley QC (who appeared in this court with Mr Jonathan Rule for Mr Blunden; below Mr Rule appeared on his own). These are that Mr Blunden did not before 16 December 1996 have any actual knowledge of any of the notices; that the Corn Exchange was enclosed by a perimeter fence; that the building was unsafe and Mr Blunden was not authorised to enter it on his own; and that Frogmore was aware of these facts.
- Subsections (3) and (4) of s.196 of the Law of Property Act 1925 (“the 1925 Act”) provide as follows:
“(3) Any notice required or authorised by this Act to be served shall be sufficiently served if it is left at the last-known place of abode or business in the United Kingdom of the lessee, lessor, mortgagee, mortgagor, or other person to be served, or, in case of a notice required or authorised to be served on a lessee or mortgagor, is affixed or left for him on the land or any house or building comprised in the lease or mortgage, or, in case of a mining lease, is left for the lessee at the office or counting-house of the mine.
(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned through the post-office undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.”
By the Recorded Delivery Service Act 1962 a letter sent by recorded delivery is equivalent to a registered letter.
- Section 23(1) of the Landlord and Tenant Act 1927 (“the 1927 Act”) contains a similar but not identical provision which also applies for the purposes of the Landlord and Tenant Act 1954 (“the 1954 Act”), as follows:
“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 statutory 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.”
- It will be apparent that one point of difference is that s.23(1) refers only to “last-known place of abode” (not “or business”) but this court has held that a reference to business is imported (see Price v West London Investment Building Society 1964 1 WLR 616). The other point of difference is that s.23(1), unlike s.196(4), makes no exception for cases where a letter is returned undelivered. At first instance section 23(1) as incorporated into the 1954 Act seems to have been regarded as Frogmore’s last-ditch argument; in this court it has played a more prominent part in the debate.
- I should for completeness also set out section 7 of the Interpretation Act 1978:
“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.”
- The judge did not find it necessary to go as far as the last ditch. After referring to various authorities (including the decision of this court in Galinski v McHugh (1988) 57 P&CR 359) he said that it was conclusively established that compliance with a prescribed form of service was valid service, even if the notice did not in fact come to the knowledge of the intended recipient. The judge said that it was “hard, very hard indeed” but that it was not reasonably arguable that Frogmore had not effected valid service by each of three routes:
i) under s.196(3), by affixing the notice to the door of 51A Fennel Street
ii) under the express provisions of clause 6.9, by the same process of affixing the notice to the door; and
iii) under the express provisions of clause 6.9, by sending the notice by post to 3 Ketton Close, Mr Blunden’s last known address in Great Britain.
- Mr Berkley put at the forefront of his submissions (although not as his best point) a point of construction which had not been taken below (and was not in the skeleton argument prepared by Mr Rule). This was the argument that the court need not be concerned with clause 6.9 at all, because it relates only to a notice “requiring to be served” (in contrast, for instance, to the form of words “required or authorised ... to be served” in section 196(3) and (4)). The lease does not in fact contain any provision positively requiring a notice to be served by the landlord, and only one requiring notice to be given by the tenant. The argument is over-literal and inappropriate to the construction of a commercial lease. I would reject it.
- That was Mr Berkley’s first pre-emptive strike aiming at removing half the obstacles in his path. His second (aiming at the other, statutory, half of the obstacles) was the submission that it was not enough for Mr Lewison to succeed on section 23 of the 1927 Act, and that if he contended that the statutory notice also operated as a valid contractual notice under clause 6.4, he must demonstrate that its service complied with clause 6.9.
- Mr Lewison submitted that that was not how section 25 of the 1954 Act worked, and he cited the decision of this court in Scholl Mfg Co Ltd v Clifton (Slim-Line) Ltd  Ch 41. In that case Harman LJ said (at p.48),
“ ... the question is whether, having regard to section 25 of the Act, the landlords may determine a lease having a break clause such as the present one under that section provided only that the termination date is not earlier than the date on which the break clause could operate. The judge held that the landlords could do this without first going through the formality of serving a notice to bring the break clause into operation. In my opinion the judge was right and, in fact, I think that section 25 so provides in express terms.”
Diplock LJ agreed, saying (at p.50),
“As regards a tenancy which would, apart from the Act, come to an end by notice to quit given by the landlord in accordance with the terms of the lease or tenancy agreement, the provision substituted by the Act is that such tenancies may be terminated by the landlord by giving notice to quit in the prescribed form. The statutory provisions to which I have referred are not in addition to but in substitution for those terms contained in the lease or tenancy agreement which relate to tenancies coming to an end by effluxion of time or by notice to quit given by the landlord to the tenant.”
(He made it clear that he was using the expression ‘notice to quit’ in the extended sense which it bears in the 1954 Act.) Winn LJ agreed with both judgments.
- In my view that is clear, binding authority against Mr Berkley’s second preemptive strike. In his reply he drew attention to the wording of Frogmore’s solicitors’ letter of 4 December 1996, stressing that the landlord had been intending to serve and rely on two notices. That may be so, but only the statutory notice was needed: as Diplock LJ put it, the statutory notice was not in addition to, but in substitution for, any contractual notice.
- In this court counsel have referred to quite a number of authorities as to the service both of contractual notices and of notices under various statutes, including not only the 1925 Act and the 1954 Act, but also the Agricultural Holdings Act 1948 and the Landlord and Tenant (Covenants) Act 1995 (which also incorporates the notice provisions of the 1927 Act). Before getting too far immersed in the detail of these authorities I would make a few general observations of an elementary nature.
- Notice is not the same as knowledge. But the evident purpose of requiring notice to be given to a particular person is that the contents of the notice should be communicated to, and become known by, that person. Nevertheless there is no doubt that both statutory and contractual provisions may lead to the position that a valid notice has been given even though the intended recipient does not know of the notice (and is not at fault in not knowing about it). This point was very clearly made by Slade LJ (delivering the judgment of the court) in Galinski v McHugh (1988) 57 P&CR 359, 365. He said that the object of section 23 of the 1927 Act, as incorporated into the 1954 Act,
“is not to protect the person upon whom the right to receive the notice is conferred by other statutory provisions. On the contrary, section 23(1) is intended to assist the person who is obliged to serve the notice, by offering him choices of mode of service which will be deemed to be valid service, even if in the event the intended recipient does not in fact receive it.” (original emphasis)
- In his oral submissions Mr Kim Lewison QC (appearing in this court, as below, for Frogmore) described these provisions as being concerned with the allocation of risk (that is, the risk of a notice being given by a recognised procedure, but nevertheless failing to achieve its purpose of communication, because of some mischance such as those exemplified in the authorities). That approach seems to have commended itself to Smedley J in Commercial Union Life Assurance Co Ltd v Moustafa  2 EGLR 44: see at p.47 K-M, where Smedley J was summarising the appellant’s argument, which he proceeded to adopt. Mr Berkley did not dissent from the general proposition that provisions of this sort are concerned with risk allocation. But he forcefully submitted that Mr Blunden’s remaining in ignorance of the notice fixed to the cordoned-off premises at 51A Fennel Street was not a risk, but a certainty.
- I accept that one of the purposes of these provisions is to establish a fair allocation of the risks of any failure of communication. The other main purpose is to avoid disputes on issues of fact (especially as to whether a letter went astray in the post or was accidentally lost, destroyed or overlooked after delivery to the premises of the intended recipient) where the true facts are likely to be unknown to the person giving the notice, and difficult for the court to ascertain.
- These difficulties are illustrated by Newborough v Jones  Ch 90, the earliest of the cases cited to this court. An agricultural tenant had refused to accept a notice to quit sent by recorded delivery (the relevant statutory provision, section 92 of the Agricultural Holdings Act 1948, provided for good service if the notice was “delivered to him, or left at his proper address, or sent to him by post in a registered letter”). So the landlord went with a witness to the tenant’s house, knocked and got no answer, and then slipped the notice under the back door. (It was the door which the tenant normally used, but it had no letter-box.)
- According to the tenant and his wife, the letter slipped under the linoleum inside the back door, and was not found for months. The county judge did not believe their evidence, but this court approached the matter on the footing that it might be true. That was the context in which Russell LJ (with the agreement of Stamp LJ and Scarman LJ) said at p.94:
“I have formed the view that, the subject matter being a notice, it is implicit in the provisions of section 92 that, if served by leaving at the proper address of the person to be served, it must be left there in a proper way; that is to say, in a manner which a reasonable person, minded to bring the document to the attention of the person to whom the notice is addressed, would adopt. This is, to my mind, the only qualification (or gloss, if you please) proper to be placed on the express language of the statutory provision.
In the present case it is quite impossible to say that the action of the landlord in putting the notice under the door was other than leaving it at the proper address in a manner which a reasonable person, minded to bring the document to the attention of the tenant, would adopt.”
- The next case, chronologically, was National Westminster Bank Ltd v Betchworth Investments Ltd  1 EGLR 57, a decision of this court on service of notice under a contractual break clause in a 14-year lease. In citing it Mr Lewison pointed out that the only point at issue was as to the meaning of the expression “last known address” (although the respondent’s notice raised a point as to the meaning of “sent by post”, the point was not argued by the respondent’s experienced counsel). But the facts are striking because the landlord’s notice exercising its right under the break clause was sent to an address which (see at p.57L)
“ ... was no longer in existence; the building had been demolished; and the envelope containing the notice was returned by the Post Office to [the landlord].”
Nevertheless this court held that it was good service. But there was no suggestion that the landlord knew, when it sent the notice, that the building had been demolished.
- Galinski v McHugh (1988) 57 P&CR 359 was concerned with a notice under Part I of the 1954 Act. It established that section 23(1) of the 1927 Act is not an exhaustive code for the service of notice, and that service on a tenant’s authorised agent (although not specified in the subsection) was effective. I have already cited the general principle stated in the judgment of the court.
- Neither side actually cited the decision of Harman J in Van Haarlam v Kasner (1992) 64 P&CR 214 but it was referred to in argument. The facts are striking since the tenant holding a 99-year lease of a flat had been sentenced to 10 years’ imprisonment for offences against the Official Secrets Act 1920. He was in prison, to his landlords’ knowledge, when a notice under section 146 of the 1925 Act was put through the letter-box of the flat. Harman J held that that was good service. He said at p.221,
“Mr Kasner’s service seem to me quite undoubtedly good service within the terms of section 196(3). It fulfils the requirements exactly.
It was attacked on the ground that it was not a proper or reasonable thing to do when it was well known, at that date in 1989, that Mr Van Haarlem was locked up in prison, when it was well known that solicitors were acting for him and were asking to receive all documents, to serve it by delivering it in accordance with section 196. In my judgment that is unarguably not correct. It is perfectly lawful, it may not be very attractive but it is perfectly lawful according to the letter of the law which is sufficiently complied with, to serve this notice by serving it through the doorway. It did in fact come to nobody’s notice.”
The point was therefore argued but no relevant authority seems to have been cited (the main argument was on the issue of waiver).
- Railtrack plc v Gojra  1 EGLR 63 was concerned with a tenant’s notice under section 26 of the 1954 Act which happened to be sent (by ordinary post) on 31 March 1994, and was therefore in the post when, by force of the Railways Act 1993, Railtrack succeeded to the undertaking and assets of the British Railway Board. It is unnecessary to go into those technicalities, or into why (unusually) it was the tenants who were seeking to discredit their own notice. The case is significant for the citation by Wilson J (with whom Evans LJ agreed) of what Megaw LJ had said in Chiswell v Griffon Land & Estates Ltd  1 WLR 1181, 1188-9,
“Section 23 of the Landlord and Tenant Act 1927 lays down the manner in which service of a notice can be effected. It is provided, as what I may call at any rate the primary means of effecting service, that it is to be done either by “personal” service or by leaving the notice at the last-known place of abode, or by sending it through the post in a registered letter, or (as now applies) in a recorded delivery letter. If any of those methods are adopted, they being the primary methods laid down, and, in the event of dispute, it is proved that one of those methods has been adopted, then sufficient service is proved. Thus, if it is proved, in the event of dispute, that a notice was sent by recorded delivery, it does not matter that that recorded delivery letter may not have been received by the intended recipient. It does not matter, even if it were to be clearly established that it had gone astray in the post. There is the obvious, simple way of dealing with a notice of this sort. But, as I think may be assumed for the purposes of this appeal, if the person who gives the notice sees fit not to use one of those primary methods, but to send the notice through the post, not registered and not by recorded delivery, that will nevertheless be good notice, if in fact the letter is received by the person to whom the notice has to be given. But a person who chooses to use that method instead of one of the primary methods is taking the risk that, if the letter is indeed lost in the post, notice will not have been given.”
- Wilson J then commented,
“I agree with the tentative conclusion in Woodfall’s Law of Landlord and Tenant, vol 2, para 22.068, that, since the primary methods of service do not depend on receipt, the date of receipt is irrelevant and, to take the third method, that the notice is served – and given – on the date when it is sent by registered post or recorded delivery. When, however, as here, notice is sent by ordinary post instead of by a primary method, it is served – and given – on such a date, if any, as it is received. Therein lies an irony: for it would follow that, had the applicants’ solicitors adopted the primary method of postal service, namely by registered post or recorded delivery, a notice sent on March 31 1994 would, on any view, have been correctly given to the then landlord.”
- The next case is the judgment of Neuberger J in Kinch v Bullard  1 WLR 423, on which Mr Rule strongly relied in the lower court. That was not a landlord and tenant case but a case about severance of a joint tenancy between husband and wife. The facts were unusual and Neuberger J described them as sad, which they were, although it might also be said that they had some element of grim irony. The husband and wife were living together but the wife (who was terminally ill) was considering seeking a divorce. She was advised by her solicitors to give notice severing the beneficial joint tenancy of the matrimonial home, in order that her husband should not come into the whole interest on her death, and her solicitors, on her instructions, posted a notice to her husband at the house where they were both living. On 3 August 1994, which was a Thursday, the solicitors posted the letter. On 5 or 6 August the husband suffered a serious heart attack and was admitted to hospital on Monday 7 August. Either on the Saturday or on the Monday the notice was delivered through the letter box. The wife picked it up and destroyed it, presumably (Neuberger J said) because at that stage she thought her husband likely to predecease her, ill though she was. The husband died a week later and the wife died about five weeks later. Neuberger J held that the joint tenancy had been severed, applying s.196(3), and that the notice, once served, could not be recalled. I shall come back to Neuberger J’s detailed reasoning.
- The most recent case is Commercial Union Life Assurance Co Ltd v Moustafa  2 EGLR 44, which was concerned with a landlord’s notice to the original lessees of business premises. The notice was given under section 17 of the Landlord and Tenant (Covenants) Act 1995. It was sent by recorded delivery to the lessees’ last known residential address but was returned to the sender by the Royal Mail. Nevertheless the landlord contended that there had been good service under section 23(1) of the 1927 Act. The landlord relied on the decisions of this court in Chiswell v Griffon Land & Estates Ltd, Galinski v McHugh and Railtrack plc v Gojra. The tenants relied on section 7 of the Interpretation Act 1978 and on a line of cases (starting with Queen v County of London Quarter Sessions Appeals Committee ex parte Rossi  1 QB 682) which were concerned with section 26 of the Interpretation Act 1889, now re-enacted as section 7 of the 1978 Act.
- The ex parte Rossi line of cases is concerned with the situation where notice must be given by a particular time, so as to engage the second part of the interpretation section (“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”). If a letter has been returned to the sender that is sufficient proof that it has not been delivered in the ordinary course of the postal service, and so in such a case the second part of the interpretation section may oust the apparent effect of the earlier part. Lord Widgery CJ put it like this in Maltglade Ltd v St Albans RDC  1 WLR 1230, 1237,
“It seems to me, although I confess I find the authorities somewhat unsatisfactory, and the conclusion is not wholly logical, that we should follow R v London County Quarter Sessions Appeals Committee, ex parte Rossi  1 QB 682 in this case, and say that it was open to the alleged recipients of this notice to say that they had not been served in time, and once that door is opened, as I said before, it is permissible for them to say that in truth the notices were never served at all.”
That approach has been adopted by this court in one case on section 23 of the 1954 Act, that is Lex Service plc v Johns  1 EGLR 92 (although it was held that the tenant had not proved that a recorded delivery letter had not been delivered).
- Smedley J commented that it was not clear how many of the earlier authorities had been cited in Lex Service plc v Johns, and in particular that there was no reference to Galinski v McHugh. He regarded the two cases as irreconcilable and he thought that he should follow Galinski v McHugh and Railtrack plc v Gojra. I am not convinced that these cases are irreconcilable rather than concerned with different aspects of service. Galinski v McHugh and Railtrack plc v Gojra were both concerned with the identity of the recipient of the notice rather than delivery or non-delivery of a letter through the post. On the other hand most legal notices, especially in the field of landlord and tenant, are time-specific in one way or another. In this case the clause 6.4 notice had to be given within six months of the date of the explosion.
- Most of the above authorities were cited by Mr Lewison, who took the court through them in chronological order. He particularly relied on section 23(1) of the 1927 Act as explained in the Railtrack and Commercial Union cases. Mr Berkley did not in his reply suggest that in Commercial Union Smedley J had been wrong to follow Galinski and Gojra in preference to Lex Service.
- Because of counsel’s thorough review of the authorities I have thought it right to refer to them in some detail. But when they are related to the undisputed or indisputable facts before the judge on the Part 24 application, and to the submissions in this court (which have been rather different from those made before the judge) it is apparent that there is a good deal of common ground between counsel and that there are three main points of contention, two relating to the attempts at postal service and one relating to the affixing of the notice on the door of 51A Fennel Street.
i) Did Frogmore achieve good service by post (under the express terms of clause 6.9) despite the known non-delivery of the letter to Mr Blunden’s house (in particular, can a condition of non-return be read into clause 6.9 or can “sent ... by post” be read as “sent and delivered”?
ii) Did Frogmore achieve good service by post under s.23(1) of the 1927 Act (as incorporated into the 1954 Act) despite the known non-delivery?
iii) Was Frogmore able to achieve good service (either under section 196(3) or under the express terms of clause 6.9) by affixing the notice to the demised premises when it must be assumed to have known that they were cordoned off and out of bounds?
- On the first of these issues, Mr Berkley submitted that clause 6.9 had chosen to incorporate section 196(4) (which has an express exception for letters which are returned) and that therefore the same exception must be read into the reference to service by post in the latter part of the subclause (beginning “or in the case of the Tenant”). This is a short point of construction which does not admit of much elaboration. The suggested construction might be fairer as between the parties, but I do not see how it can possibly be extracted from the language of the subclause.
- Still on the first issue, Mr Berkley also submitted (if I understand his argument correctly) that the words “sent to [the tenant] by post” in clause 6.9 produced the same result (that is, that a letter returned to sender could not achieve good service). But the statutory provisions and the cases draw a fairly clear distinction between sending a notice by post and leaving a notice for the tenant at premises: see for instance Kinch v Bullard  1 WLR 423, 427. Again, I do not think that this construction can be placed on the words used, which are plainly intended to amount to a provision for the benefit of the landlord.
- On the second issue, section 23(1) of the 1927 Act does not contain any exception for letters which are returned. Once Mr Berkley’s second pre-emptive point is out of the way, therefore, the only possible means of avoiding the conclusion that there was good service under section 23(1) would be an argument on the lines of that in Lex Service. That argument would involve (i) relying on section 7 of the Interpretation Act 1978; (ii) contending that the clause 6.4 notice was time-specific; and (iii) establishing that the Commercial Union case was wrongly decided. Mr Berkley did not put forward any argument on those lines and I certainly would not criticise him for not doing so.
- I would therefore resolve both the issues on postal service in favour of Frogmore, and either is sufficient to lead to the dismissal of the appeal. That makes it tempting to leave the third issue in the air, especially as it is, to my mind, an issue of real difficulty. But as we have heard full argument on it I think I should express my view on it as definitely as I can.
- On this point Mr Berkley’s submissions did follow Mr Rule’s skeleton argument, and the oral argument which had been addressed to the judge. The court was urged not to abandon common sense. Frogmore was not accused of acting in bad faith, but it was suggested that the affixing of the written notice to a cordoned-off building was as ineffective as if the notice had been affixed to the building at five minutes to midnight and taken down again five minutes later. In either case it was not going to achieve its intended purpose of communicating information to the addressee.
- In support of these general submissions Mr Berkley relied on what Russell LJ had said in Newborough v Jones (“it must be left there in a proper way”) and to a passage in the judgment of Neuberger J in Kinch v Bullard which needs to be set out at length. After referring to Newborough v Jones Neuberger J said ( 1 WLR at 429 H, 430 E-F),
“So far as convenience is concerned, I consider that, if section 196(3) is satisfied once it is shown that the relevant document was bona fide delivered to the last-known place of abode or business of the addressee, then, although it might lead to an unfair result in an exceptional case, the law is at least simple and clear. On the other hand, if the court starts implying exceptions into the clear and simple statutory procedure, confusion and uncertainty could result. ...
However, I am concerned that, if it could be said that the notice in the present case was validly served, unfair advantage could be taken of an addressee by the sender of a notice if the sender (or his agent) had some means of access to the notice after it was served in accordance with section 196 but before the addressee actually saw it, and this resulted in the notice being destroyed or hidden without the addressee ever becoming aware of it. Accordingly, I was at one time attracted by the proposition that some sort of qualification should be imposed on the provisions of section 196, so as to exclude from the concept of valid service as case where the sender has, in effect, intercepted the notice before it was received by the addressee, thereby somewhat extending the qualification or gloss laid down by Russell LJ in Newborough v Jones.”
- However Neuberger J continued,
“On reflection, however, I think it neither appropriate nor desirable to impose such a further qualification on the plain words of section 196(3). First, as a matter of general principle, the court should be slow to imply qualifications into a statutory provision, particularly when that provision is clear and simple in its effect and is intended to have practical consequences. Secondly, it does not seem to me that a conclusion in favour of the plaintiffs in the present case should lead to any unfair abuse. In the present case, it is [the husband] (or, more accurately, his executors) who wish to allege that the notice delivered by [the wife] was validly served in light of section 196(3). There is no potential for abuse in that context.”
- He then discussed the particular facts of the case before him and went on (at 431A-C),
“ ... it cannot be right for a sender of a notice, who had intentionally taken steps to ensure that it did not in fact come to the attention of the addressee, to contend that it was served on him. In other words, whatever section 196 provides, it could not be relied on by the sender of a notice as an engine of fraud. The very purpose of serving a notice is to convey information, with legal consequences, on the addressee: it cannot be right that the sender of a notice can take positive steps to ensure that the notice does not come to the attention of the addressee, after it has been statutorily deemed to have been served, and then fall back on the statute to allege that service has none the less been effected.”
- These passages gave some comfort to each side. Mr Berkley stressed that the court must not permit the statutory provision to be used as an engine of fraud. Mr Lewison stressed the general principle that the court should be slow to imply qualifications into a clear and simple statutory provision. He also pointed out that Russell LJ was concerned, not with a choice between methods of service, but with possible abuse of a particular method; and Neuberger J was referring to the possibility of a sender taking positive steps, after a notice had been deemed to have been served, to prevent it coming to the attention of the addressee.
- In my view Neuberger J was right in his general observation that
“the court should be slow to imply qualifications into a statutory provision, particularly when that provision is clear and simple in its effect and is intended to have practical consequences.”
Still less is it open to the court to conjure up a doctrine which overrides the effect of a statutory provision, as the Court of Chancery developed the doctrine of part performance in order to circumvent the operation of the Statute of Frauds. Even in the recondite area of artificial tax avoidance the House of Lords (in MacNiven v Westmoreland Investments Ltd  STC 237, 255) has recently reiterated
“the paramount necessity of giving effect to the statutory language.”
- If the landlord had deliberately concealed his notice under the linoleum in Newborough v Jones, he would not have left the notice at the tenant’s house in a proper way (Russell LJ’s phrase) but in a way which was deceptive and illusory. It would not strain the language of the statute to conclude that such conduct could not achieve good service. Similarly with counsel’s example of a notice which was deliberately put up for only five minutes (whether in the middle of the night or in daytime) and then taken down again. The court would have little difficulty in concluding that it had not been “affixed” within the meaning of the statute, and that it was not good service.
- Those are however fairly extreme cases in which the notice-giver would demonstrably be acting in bad faith. I do not think the language of the two relevant statutory provisions, or of clause 6.9 of the lease, can be constricted so as to exclude a course of action by Frogmore which falls squarely within that language, and which Frogmore adopted in what appears to have been a genuine attempt at communication, by every possible means, with Mr Blunden and its other tenants. Mr Blunden did not allege bad faith on Frogmore’s part (indeed, his counsel expressly disavowed it). I would therefore hold that the judge was right to conclude that there was good service by this means also.
- I would therefore dismiss this appeal.
Lord Justice Carnwath:
- I agree that the appeal fails on either of points (i) or (ii) for the reasons given by Robert Walker LJ. I prefer to express no view on (iii), which raises more difficult issues, and arises in an unusual form in the very special circumstances of this case. I would not wish to encourage a landlord in a similar case to think that it is sufficient to fix a notice to a door where everyone knows that it is impossible for the tenant, or anyone on his behalf, to see it. Sensibly, in the present case the solicitors did not confine themselves to that form of service.
Lord Justice Schiemann:
- I also would dismiss this appeal for the reasons given in the first 44 paragraphs of Robert Walker LJ’s judgement which I gratefully adopt.
- In the circumstances it is not necessary for me to come to a concluded view as to what he describes as the third issue.
- The facts relevant to this issue are a little obscure but can I think be taken to be that at the time the notice was affixed to the premises the landlord had made it impossible for the person to whom the notice was addressed to have access the notice. The landlord made access impossible in order to comply with the notice served by the Local Authority under the Building Act. The landlord did not inhibit the tenant’s access to the premises in order to prevent the tenant from seeing the notice. However, the landlord knew, before he affixed the notice, that the effect of his own compliance with the Building Act notice was to prevent the tenant from seeing the notice. Adapting the words of Neuberger J. which are cited above at paragraph 49, the sender of the notice had intentionally taken steps which to his knowledge ensured that it did not come to the attention of the addressee. In those circumstances it does not seem to me right for the sender to contend that the addressee has been served.
- As I understand my Lord’s paragraph 52 above he accepts that there can be circumstances where the plain words of the statute must yield to the court’s innate sense of justice. Had the landlord in the present case only been able to rely on the affixing of the notice in the circumstances described then I would have felt it unjust to find in his favour. Whether more general considerations should lead to a different conclusion I, like Carnwath LJ, would prefer to leave to another day.
- I agree with my Lords that this appeal must be dismissed.
- The appeal of the Appellant be dismissed
- The Appellant do pay the Respondent’s costs of the appeal to be subject of detailed assessment in default of agreement. The liability of the Appellant to pay those costs shall be postponed until after their determination in accordance with regulation 10 of the Community Legal Services (Costs) Regulations 2000.
- The Appellant’s costs be pursuant to article 4 of the Community Legal Services (Funding) Order 2000.
(Order does not form part of the approved judgment)
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