Blunden v Frogmore Investments Ltd
Schiemann and Robert Walker LJJ and Carnwath J
Notice to quit — Service — Validity — Landlord purporting to serve notice to quit on appellant tenant — Judge finding notice validly served — Whether postal service valid where letter undelivered — Whether service at demised premises valid where tenant denied access — Section 196(3) and (4) of Law of Property Act 1925 — Section 23(1) of Landlord and Tenant Act 1927 — Appeal dismissed
The appellant was the tenant and the respondent was the landlord of premises situated in a building in Manchester. After the building was damaged by a terrorist bomb, the landlord sought to serve notice on the tenant terminating its lease on the ground, set out in clause 6.4 of the lease, that the demised premises were unfit for occupation. Clause 6.9 provided for service in accordance with section 196 of the Law of Property Act 1925, as amended by the Recorded Delivery Service Act 1962. Section 196(3) permitted service by leaving the notice at the demised premises, and section 196(4) provided for valid postal service “if that letter is not returned [through the Post Office] undelivered”. Those two methods were also separately listed in the body of clause 6.9, but without any provision for undelivered letters.
The landlord attempted service of the notice, in the form of a letter and a notice under section 25 of the Landlord and Tenant Act 1954, by attaching it to the building and also by sending it, via recorded delivery, to the demised premises and to other addresses of the tenant. Each of the posted notices was returned undelivered, and the tenant did not receive the other notices because it was impossible, due to security measures in the wake of the bombing, to access the building. In subsequent proceedings by the tenant, the judge held, on a preliminary issue, that the notice had been validly served: (i) under section 196(3), by being left at the demised premises; and (ii) under the express provisions of clause 6.9, by being left at the demised premises and being sent by post. He accordingly dismissed the claim under CPR 24 as having no real prospect of success.
Notice to quit — Service — Validity — Landlord purporting to serve notice to quit on appellant tenant — Judge finding notice validly served — Whether postal service valid where letter undelivered — Whether service at demised premises valid where tenant denied access — Section 196(3) and (4) of Law of Property Act 1925 — Section 23(1) of Landlord and Tenant Act 1927 — Appeal dismissed
The appellant was the tenant and the respondent was the landlord of premises situated in a building in Manchester. After the building was damaged by a terrorist bomb, the landlord sought to serve notice on the tenant terminating its lease on the ground, set out in clause 6.4 of the lease, that the demised premises were unfit for occupation. Clause 6.9 provided for service in accordance with section 196 of the Law of Property Act 1925, as amended by the Recorded Delivery Service Act 1962. Section 196(3) permitted service by leaving the notice at the demised premises, and section 196(4) provided for valid postal service “if that letter is not returned [through the Post Office] undelivered”. Those two methods were also separately listed in the body of clause 6.9, but without any provision for undelivered letters.
The landlord attempted service of the notice, in the form of a letter and a notice under section 25 of the Landlord and Tenant Act 1954, by attaching it to the building and also by sending it, via recorded delivery, to the demised premises and to other addresses of the tenant. Each of the posted notices was returned undelivered, and the tenant did not receive the other notices because it was impossible, due to security measures in the wake of the bombing, to access the building. In subsequent proceedings by the tenant, the judge held, on a preliminary issue, that the notice had been validly served: (i) under section 196(3), by being left at the demised premises; and (ii) under the express provisions of clause 6.9, by being left at the demised premises and being sent by post. He accordingly dismissed the claim under CPR 24 as having no real prospect of success.
The tenant appealed, contending that: (i) service at the demised premises was invalid, since the landlord knew that the premises were inaccessible; (ii) postal service under clause 6.9 was not valid unless the letter was delivered; and (iii) the same was true of postal service pursuant to section 23(1) of the Landlord and Tenant Act 1927, which applied to the service of the notices under section 25 of the 1954 Act.
Held: The appeal was dismissed.
1. The express provision for postal service in clause 6.9 could not be construed as requiring the letter to reach the tenant. Whereas section 196(4) of the 1925 Act expressly included an exception for returned letters, the express provision for postal service in clause 6.9 did not, and such an exception could not be read into it. Nor could such an exception be implied into section 23(1) of the 1927 Act: Commercial Union Life Assurance Co Ltd v Moustafa [1999] 2 EGLR 44, Railtrack plc v Gojra [1998] 1 EGLR 63 and Galinski v McHugh (1988) 57 P&CR 354 applied; Lex Service plc v Johns [1990] 1 EGLR 92 distinguished. Section 23 was intended to establish a fair allocation of the risks of any failure of communication and to avoid disputes on issues of fact. In the case of service by post, it benefited the landlord and placed the risk on the tenant. It followed that the landlord had validly served notice in the instant case by posting the notices, even though they had not been delivered.
2. Service at the demised premises had also been valid. The course of action followed by the landlord in effecting service fell squarely within the language of section 196(3) and the express provisions of clause 6.9, and the court should be slow to imply qualifications into a clear and simple statutory provision. The landlord’s attempted service represented a genuine attempt at communication with the tenant by every possible means, and there had been no element of bad faith. The landlord could not be said to have abused the statutory method of service or to have served the notice in an improper way: Lord Newborough v Jones [1975] Ch 90 and Kinch v Bullard [1999] 1 WLR 423 considered.
David Berkley QC and Jonathan Rule (instructed by Norton & Co, of Manchester) appeared for the appellant; Kim Lewison QC (instructed by Dechert) appeared for the respondent.
Sally Dobson, barrister
