Freetown Ltd v Assethold Ltd [2012] EWCA Civ 1657 concerns the question of whether a notice served in connection with land becomes effective when posted or when received. The Court of Appeal was asked to consider the issue in the context of the transmission of an award to the parties to a party wall dispute.
Under section 10(17) of the Party Wall etc Act 1996, a party has 14 days from service of the award to appeal to the county court. There is no discretion to extend the deadline. Did time run from the date when the award was posted or, alternatively, from the date upon which it was received?
Freetown Ltd v Assethold Ltd [2012] EWCA Civ 1657 concerns the question of whether a notice served in connection with land becomes effective when posted or when received. The Court of Appeal was asked to consider the issue in the context of the transmission of an award to the parties to a party wall dispute.
Under section 10(17) of the Party Wall etc Act 1996, a party has 14 days from service of the award to appeal to the county court. There is no discretion to extend the deadline. Did time run from the date when the award was posted or, alternatively, from the date upon which it was received?
The county court and High Court judges applied C A Webber (Transport) Ltd v Railtrack plc [2004] 1 WLR 320, a Court of Appeal decision on section 23(1) of the Landlord and Tenant Act 1927, and decided that time begins running when the award is posted. The appellant argued that time should run from the date on which the award is received.
It claimed that the right of appeal was an important right. An award authorised and regulated work that would otherwise constitute a trespass. If receipt did not matter once an award had been committed to the post, then a right of appeal could be lost without the existence of an award even being known – and the time for appealing was short enough as it was. The date of posting would be known only to the surveyor who posted the award. Neither party to the award would know the deadline for an appeal and it would be unsatisfactory for the existence of an appeal to depend on the evidence as to posting of the surveyor against whom a party wished to appeal.
The case turned on whether section 7 of the Interpretation Act 1978 applies to service under section 15 of the 1996 Act. Section 7 provides that, where an Act authorises or requires any document to be served by post, then, unless the contrary intention appears, 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.
In Webber, the court ruled that service is effective when a registered letter is put in the post and that section 23 of the 1927 Act is incompatible with section 7 of the 1978 Act. However, their Lordships declined to apply the reasoning in Webber to service under section 15 of the 1996 Act. They decided that section 7 applied and that time ran from the date on which the award was received. Section 15 specified alternative methods of service and did not expressly exclude section 7. The alternative method specified contemplated receipt by the person to be served and the court did not see why service by post should involve something short of that equivalent.
Interestingly, the court appeared to harbour doubts about the jurisprudence behind Webber. However, the decision remains good law in relation to the service of notices under section 23 of the 1927 Act (although this case suggests that some members of the Court of Appeal might be persuaded to take a different approach, were they at liberty to do so).
Allyson Colby, property law consultant
