Service by post re-visited: Freetwon V Assethold
Several property statutes contain a provision enabling a notice (or some other document) to be served by being “sent by post” (without prescribing any particular method of posting): see section 176(2) and (3) of the Housing Act 1985; section 54(2) of the Landlord and Tenant Act 1987; section 99(1) of the Leasehold Reform, Housing and Urban Development Act 1993; section 15(1) of the Party Wall etc. Act 1996 (“PWA 1996”); and section 111(1) of the Commonhold and Leasehold Reform Act 2002.
Until now, it has been uncertain how such provisions should be interpreted. Is a document “sent by post” if it has been posted but, before delivery, lost? Or is a document “sent by post” only if it is delivered to the correct address? Either way, when is a document “sent by post”? When posted? When delivered? At some other time?
We now have an authority answering those questions. It is surprising that it has taken so long.
The case is Freetown v Assethold  EWCA Civ 1657. The Court of Appeal was concerned with an attempt to appeal a party wall award. Section 10(17) of the PWA 1996 provides that:
“Either of the parties to the dispute may, within the period of fourteen days beginning with the day on which an award made under this section is served on him, appeal to the county court.”
So there is a short and (apparently) inflexible period for appealing. In Freetown, an award was served on the parties by post. One of the parties was dissatisfied. It filed an Appellant’s Notice at the county court. Whether the appeal had been brought within the 14 day period depended upon whether the award should be regarded as having been served on the date on which it was posted or on the date on which it had been delivered.
There is a statutory provision tailor-made to answer that issue.
Section 7(1) of the Interpretation Act 1978 (“IA 1978”) provides that:
“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.”
That provision is not especially easy to interpret. However, it has been held that “a contrary intention” means an intention, appearing in a statute authorising service by post, that the rules about service contained in section 7(1) should not apply. If section 7(1) does apply, it has been held that the recipient can establish: (i) that service had not been effected on the ground that the document was never delivered; or (ii) that the time of delivery/service was other than “at the time at which the letter would be delivered in the ordinary course of post.”
There is nothing in the drafting of section 15(1)(b) of the PWA 1996 (or any of the other statutory provisions referred to above) suggesting that the rules about service contained in section 7(1) of the IA 1978 do not apply. So, applying those rules, the date of service of the award in Freetown was the date on which the award had been delivered (not when it was posted).
Nevertheless, at first instance (Mr Recorder Hochhauser) and on a first appeal (Slade J), it was held that section 7(1) of the IA 1978 did not apply to the service of documents by post under section 15(1)(b) of the 1996 Act. And that, in consequence, the award had been served when it was posted.
What was held to stand in the way of enabling section 7(1) of the IA 1978 to perform precisely the type of task for which it is designed (i.e. identifying how a provision which enables a document to be “sent by post” operates) was a line of authorities dealing with section 23 of the Landlord and Tenant Act 1927 (“L&TA 1927”).
For property practitioners, section 23 of the L&TA 1927 is important. It has been incorporated into a several other statutes, including the Landlord and Tenant Act 1954. Section 23 permits a document to be served “by sending it through the post in a registered letter [or by recorded delivery service]”. So, in contrast to section 15(1)(b) and the other statutory provisions referred to above, section 23 permits documents to be served, not by any type of post, but only by registered post or recorded delivery. It has been held, on the basis of reasoning that can best be described as opaque, that a “contrary intention appears” in section 23 of the L&TA 1927 which disapplies the rules about service contained in section 7(1) of the IA 1978: see, in particular, Commercial Union Life Assurance Co Ltd v Moustafa  2 EGLR 44, Beanby Estates Ltd v Egg Stores (Stamford Hill) Ltd  1 WLR 2064 (being a judgment of Neuberger J) and CA Webber Ltd v Railtrack plc  1 WLR 320.
In Freetown, the Court of Appeal, allowing the appeal, rejected a submission that this line of cases prevented the Court from holding that the rules about service contained in section 7(1) of the IA 1978 Act applied to service by post under section 15(1)(b) of the PWA 1996.
Their Lordships considered that service at the date of posting (rather than delivery) was more plausible where the posting had to be by registered post or recorded delivery (as with section 23 of the L&TA) than where ordinary post could be adopted (as with section 15(1)(b) of the PWA 1996 and the other statutory provisions referred to above). Rix LJ (with whose judgment Patten LJ and the Chancellor agreed) said at paragraph 45 that:
“…the advantage of this method of post is that (i) the day of posting will be recorded, (ii) the fact (and date) of delivery will be recorded, and (iii) if the letter cannot be delivered, it will be returned and the sender will be informed.”
However, when distinguishing the cases on section 23 of the 1927 Act, the Court of Appeal went much further than this. At paragraph 46, Rix LJ said that:
“I have…been struck at how the section 23 jurisprudence has not proceeded so much by reference to section 7 of the Interpretation Act and its exclusion, as by reference to the construction of section 23 on its own terms. Thus in Webber this court reasoned that it was bound by this court’s decision in Galinski, but Galinski did not consider section 7. In such circumstances, I do not consider that it would be appropriate to extend the reasoning applicable to section 23 to the LTA 1927 into a different statute, with different wording, by reference to which it cannot be said that section 7 is excluded on the basis that “the contrary intention appears”.
In other words, the (ex post facto) reasoning contained in the authorities dealing with the relationship between section 23 of the L&TA 1927 and section 7 of the IA 1978 is so dubious that those cases, as binding authority, should be confined as narrowly as possible. That reasoning perhaps now needs to be considered by the Supreme Court.
More generally, compared to many previous cases, the Court of Appeal indicated a much greater desire to protect recipients of documents from the injustice that can be caused by the operation of statutory service provisions.
For example, in the past, it has been suggested that it might be possible to establish service even if the server has deliberately adopted a statutory method of service that he knows will mean that the document will not come to the recipient’s attention (in preference to other methods of service which would have meant that the document would come to the recipient’s attention): see Van Haarlam v Kasner (1992) 64 P&CR 214 and Blunden v Frogmore Investments Ltd  L&TR 31, per Robert Walker LJ at page 513. Yet, in Freetown, Rix LJ said the following about a server who had inadvertently adopted a method of service that meant that the document had not come to the recipient’s attention:
“The question of a sender of a section 23 notice who knows, through the post office, that his notice has not been received, but then does nothing to inform his addressee about the missing notice, seems to have been acknowledged by Neuberger J in Beanby (at paras -) as unattractive, but nevertheless as an example of “occasional harsh or unfair results” which may have to be tolerated in any system. For myself, I would hope that any server of a notice who knows that he has posted a valid notice and also knows that it has not been received and that the addressee therefore knows nothing about it and yet does nothing to inform the addressee of the notice, would find his path strewn with difficulties.”
That is an intriguing passage. Yet, in light of the previous case law, quite what those legal “difficulties” might be is, perhaps, not easy to identify.
1. In fact, in order to comply with Article 6 of the European Convention, it is probably necessary to imply a jurisdiction to extend time in an exceptional case: see Pomiechowski v Poland  1 WLR 1604 (in which the Supreme Court held that such a jurisdiction existed in relation to short time limits for appealing extradition decisions) and Mustafa v Zafrani (in which Ramsey J appeared attracted by a submission that a similar jurisdiction existed under the PWA 1996).