Khan and another v D’Aubigny

Landlord and Tenant – Possession – Notice – Respondent landlords seeking possession of property let to appellant under assured shorthold tenancy by serving notice under section 21 of Housing Act 1988 – Appellant denying receipt of requisite gas safety certificate, energy performance certificate and How to Rent booklet – Whether section 7 of Interpretation Act 1978 applicable – Whether common law presumption of receipt applicable – Appeal dismissed The respondents let a property to the appellant under an assured shorthold tenancy. They sought possession relying on a notice served under section 21 of the Housing Act 1988 which was admittedly sent and received. However, the respondents were not entitled to give a section 21 notice if they were in breach of various statutory requirements to give other documents to the appellant, namely an energy performance certificate (EPC), a gas safety record (GSR) and a document entitled “How to rent: the checklist for renting in England”. The respondents said that the documents had been posted to the appellant but she denied having received them. The respondents argued that section 7 of the Interpretation Act 1978 applied so that once they proved that the documents had been posted and properly addressed, the appellant had to show they had not been received and her bare denial of receipt did not suffice. They also relied on clause 13.2 of the tenancy agreement which provided: “Any notice sent to the tenant under or in connection with this agreement shall be deemed to have been properly served if…sent by first class post to the property”. In any event, the appellant had failed to rebut the common law presumption of receipt of a properly addressed letter. A deputy district judge ruled in favour of the respondents and granted a possession order. On appeal, the judge upheld that decision. The appellant brought a second appeal. Held: The appeal was dismissed. (1) The 1978 Act was by definition an Interpretation Act. Its purpose was to tell one what words used in other statutory provisions meant. Section 7 was in a group of sections headed “Interpretation and Construction”, each of which told one how words and expressions used in Acts were to be interpreted and construed. For that purpose, section 7 was concerned with “References to service by post”. Therefore, on its face section 7 concerned the effect of a statutory provision that referred in terms to service “by post”.  It did not matter whether the word “serve” was used or some other expression such as give or send or anything else to like effect; but the statutory provision had to refer to serving (or giving, sending etc) a document by post. It was not applicable to one that simply referred to giving a document, without any reference to that being done by post; such a statutory provision neither required nor authorised service by post, even though it did not prohibit it. The statutory provisions in question here were all of that type, and it followed that section 7 did not apply to them: Postermobile plc v Kensington and Chelsea Royal London Borough Council [2000] PLSCS 122; (2000) 80 P&CR 524, Freetown Ltd v Assethold Ltd [2012] EWCA Civ 1657; [2013] 1 EGLR 57, London Borough of Southwark v Akhtar [2017] UKUT 150 (LC); [2017] PLSCS 95; [2017] L&TR 564 and Newcastle City Council v Abdallah [2024] UKUT 140 (LC); [2024] PLSCS 95; [2024] HLR 33 considered. (2) The concept of a notice was not confined to notices required by statute. In many contractual relationships, the parties’ rights could be affected by one party giving notice to the other. The concept of a notice did not depend on the word itself being used. A “notice” could include a document exercising a right under a contract but the ordinary meaning of “notice” was not confined to that. It could include a document which conveyed information as well as one which exercised a right. That was well within the ordinary core meaning of a notice: for example, a document which started “Take notice that…” might be used not only to exercise a right, but also to convey information.  A notice was a formal written notification of something which had to be for some formal purpose; and in the case of a landlord and a tenant, that meant in connection with their relationship of landlord and tenant. (3) In this case, the letter enclosing the relevant documents – the EPC, the copy of the GSR and How to Rent – was a notice for the purposes of clause 13.2. It was sent by the respondents as landlords to the appellant as tenant.  The documents enclosed were important documents, required by legislation to be given by landlords to tenants, and containing information of acute concern for tenants under assured shorthold tenancies. Therefore, the respondents could rely on clause 13.2 of the tenancy agreement in relation to the letter enclosing each of the EPC, GSR and How to Rent. The letter was sent by first class post to the flat and the result was that, by clause 13.3.2, it was deemed to have been received on the second working day after posting. That deeming provision, unlike section 7 of the 1978 Act, did not contain any provision enabling it to be rebutted by proof to the contrary. It followed that the documents were to be regarded as properly served before the section 21 notice was given. (4) There was a common law presumption that a properly addressed letter which had been posted was presumed to reach its destination unless it was rebutted by proof to the contrary. All that was needed at common law to generate the presumption was that a letter properly directed (ie, addressed) was put into the post-office; it was also implicit in that that the letter was pre-paid. There was no relevant distinction between that and the statutory presumption which was generated by properly addressing, pre-paying and posting a letter. Given the district judge’s unappealed conclusion that the appellant’s evidence was insufficient to rebut the latter, it followed that it was also insufficient to rebut the former: Gresham House Estate Co v Rossa Grande Gold Mining Co [1870] WN 119, CalladineSmith v Saveorder Ltd [2011] EWHC 2501 (Ch); [2011] PLSCS 242, Haywood v Newcastle upon Tyne Hospitals NHS Foundation Trust [2017] EWCA Civ 153, [2017] ICR 1370 and Griffiths v TUI (UK) Ltd [2023] UKSC 48; [2023] 3 WLR 1204 considered. Martin Westgate KC, Matthew Lee and Tim Jones (instructed by Duncan Lewis Solicitors) appeared for the appellant; Justin Bates KC and Richard Clarke (instructed by Gateley plc) appeared for the respondents; Tom Morris (instructed by JMW Solicitors LLP) appeared for the intervener (by written submissions only) Eileen O’Grady, barrister Click here to red a transcript of Khan and another v D’Aubigny