Are you being served? Lessons from the English Court of Appeal
The landlords served a section 21 notice under the Housing Act 1988, but the tenant, Mrs D’Aubigny, denied receiving three key documents—a Gas Safety Record (GSR), an Energy Performance Certificate (EPC), and the How to Rent booklet. As service of these documents was a statutory prerequisite, the dispute centred on whether they had been validly served.
The landlords relied on three key arguments, all of wider relevance:
- Statutory service (Section 7 IA 1978): That properly addressed, prepaid post is deemed served unless the recipient proves otherwise.
- Contractual service: A clause in the tenancy deemed notices sent by first-class post to be properly served.
- Common law presumption: A properly addressed and posted letter is presumed delivered unless the recipient proves otherwise.
The tenant disputed all three points, arguing that IA 1978 did not apply, the documents were not “notices” under the tenancy, and the common law presumption did not apply as the landlords contended.
The Court’s decision
The Court of Appeal upheld the landlords’ arguments on contractual service and the common law presumption but rejected reliance on IA 1978:
- Statutory service—IA 1978 did not apply: The IA 1978 applies only where a statute expressly requires service by post. The Housing Act merely requires landlords to “give” documents, so IA 1978 was irrelevant.
- Contractual service—the letter was a “notice”: The landlords’ covering letter was a notice under the tenancy, as it formally notified the tenant of matters relevant to her rights.
- Common law presumption applied: A properly addressed and posted letter is deemed delivered unless proved otherwise. A mere denial of receipt was insufficient.
Key takeaways for litigators
- Read statutory service provisions carefully—if a statute does not require service by post, the IA 1978 will not assist.
- Contractual service clauses matter—if a contract deems postal service effective, the courts will uphold it.
- The common law presumption remains strong—but evidentiary records (eg tracking) remain crucial.
While Harneys does not advise on the law of England and Wales, English decisions are persuasive in the offshore courts and are therefore of interest. This is especially the case where the IA 1978 applies in Bermuda. Further the equivalent provisions in both the BVI and the Cayman Islands (section 25(1) of the Interpretation Act 1985 and section 53 of the Interpretation Act (1995 Revision), respectively) is identical in wording to section 7 of the IA 1978.
