To post, or not to post? That is the question (sort of…)

The decision in Khan v D’Aubigny [2025] EWCA Civ 11 is interesting as the first decision at this level on deemed service under section 7 of the Interpretation Act 1978, but is equally important for the approach taken to the meaning of a ‘notice’ under a tenancy agreement.

As anyone who deals with possession proceedings (any plenty of those who don’t) will know, service of notices and other documents is often key to establishing the right to possession. It is also one of the matters that is often disputed and often botched. So deemed service is something very valuable to a landlord.

Section 7 of the Interpretation Act 1978 (‘IA 1978’) provides for a form of deemed service in certain circumstances as follows:

“7 References to service by post

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.”

The question for the Court of Appeal on a second appeal in Khan v D’Aubigny [2025] EWCA Civ 11, was whether section 7 could be used where a statute requires a document to be given or provided, but does not expressly state that it must be given or provided by post.

The Facts

This matter started as a relatively routine claim for possession of residential premises under section 21 of the Housing Act 1988 (‘HA 1988’). As will be familiar to anyone who has deal with section 21 claims, in order to be entitled to possession a landlord must give notice to a tenant in a prescribed form. Crucially at the time the notice is given, the landlord must also have complied with various statutory requirements (set out in sections 21A and 21B HA 1988) to provide other documents to the tenant, including an Energy Performance Certificate (‘EPC’), a Gas Safety Record (‘GSR’) and the ‘How to Rent’ guide (collectively ‘the documents’).

In the present case, the Khans (as landlords) gave evidence that their solicitor had posted those documents to D’Aubigny (as the tenant) prior to the giving of notice under section 21. D’Aubigny denied receiving them. The receipt of the section 21 notice itself was not disputed.

The tenancy agreement, at clause 13.2, contained a deemed service provision for ‘notices’ given to the tenant which authorised service by first class post (amongst other methods).

When the possession claim came before the County Court, Deputy District Judge Davies held that the documents had been served, relying on the deemed service provisions in section 7 IA 1978 and also on a deemed service provision in clause 13.2 of the tenancy agreement. He ordered possession. On the first appeal to Her Honour Judge Baucher, this decision was upheld on both grounds. The Judge on appeal also found that she would have founds service of the documents proved in any event.

Permission to bring a second appeal to the Court of Appeal was granted on the grounds that the particular interpretation of section 7 IA 1978 had not been considered previously and was a matter of general importance that required resolution.

The Arguments

Sections 21A and 21B H 1988 both empower the relevant Secretary of State to make regulations concerning the prescribed legal requirements and the provision of prescribed information. Without going into the detail of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015, the requirements can be summarised as follows (borrowing from paragraph 11 of the judgment of Nugee LJ in the Court of Appeal):

‘Landlords of premises let under an AST cannot serve a s. 21 notice unless they have complied with statutory requirements (i) to ensure that a valid EPC “has been given” to the tenant; (ii) to ensure that a copy of a GSR “is given” to the tenant; and (iii) to “give” the tenant the current version of “How to Rent”.’

It was common ground before the Court of Appeal that one way to ‘give’ a document was by sending it through the post (see paragraph 32 of the Judgment).

The Argument for the landlords was that, while the relevant parts of the regulations do not require the documents to be given by post, they do, by implication, authorise them to be given by post as one of the permitted methods of giving those documents. Thus, section 7 IA 1978 was engaged and service of the documents was deemed to have been effective upon posting.

The tenant argued that, for section 7 to be engaged, the relevant regulations had to expressly provide for service by post, as is the case with many other statutory provisions of which some examples were given at paragraph 35 of the Judgment.

On clause 13.2 of the tenancy agreement, the tenant argued the references to ‘notices’ should be narrowly construed as only affecting notices and should not extend to the documents, which were not notices as that term is ordinarily used. The landlord, unsurprisingly, argued that the word ‘notices’ should be construed widely to apply to all documents sent in connection with the tenancy agreement

The Decision on Section 7

Nugee LJ (with whom Cobb J and Newey LJ agreed) started his decision by rejecting the argument that the words in brackets in section 7 were intended to mean that use of the words ‘serve’, ‘give’ or ‘send’ were intended by Parliament to be synonymous with the phrase ‘served by post’, which appears immediately before the brackets. He held that the more natural meaning was that those three words were intended to be replacements for the word ‘serve’ only. If Parliament had intended that the use of any expression such as ‘give’ or ‘send’ should engage deemed service when a document was sent by post then it could have formulated language to make that explicitly clear (see paragraphs 36 and 37).

It was then pointed out that IA 1978 is primarily intended to be an interpretation Act and thus to ‘tell one what words used in other statutory provisions mean.’ The heading of section 7 is ‘References to service by post’ and, following the principle that a heading in an Act may be considered in construing a provision providing that note is taken of the fact that it is intended merely to be a brief guide to the contents of the provision, this indicated that section 7 was intended to deal with only statutory provisions where reference was explicitly made to service by post.

The consequence of this was that, to engage section 7, a statutory provision my state that a document can or should be sent ‘by post’. There is a distinction between a statutory provision explicitly authorising service by post and it simply not prohibiting such service. Section 7 only applies to the former (see paragraph 40).

Having come to that conclusion on his own construction of section 7, Nugee LJ proceeded to review the lower-court decisions which had come to a similar conclusion

The Decision on Clause 13.2

It was not, however, all over for the landlord in this case. The Judgment in the Court of Appeal went on to consider the meaning of the word ‘notices’ as used in clause 13.2. Despite there appearing to have been limited submission on the meaning of the word, at paragraph 57, Nugee LJ explored it himself and concluded that the concept of a notice is not confined to notices required to be given by statute but extends to something formal that is required to exercise some sort of right under a contract. It can also include something that is merely for the purposes of giving information.

His Lordship stated he did not intend to give a comprehensive definition of what constituted a notice, but he did give something close to it, as follows, at paragraph 59:

‘[I]n general a notice is simply something that notifies the recipient of something. To that there should no doubt be added two things. First, that “a notice” is I think generally to be understood as referring to a notice in writing, and certainly so in clause 13 which refers to “Any notice … sent”… [T]hat is to be contrasted with “notice” more generally which need not be in writing. Second, that the word “notice” has an air of formality about it. An e-mail telling a friend that I intend to go to Paris next week would scarcely be called a notice, but if an employee were employed in a job which required them to tell their employer if travelling abroad, then such an e-mail might more reasonably be called a notice of intended travel. So we can perhaps say that a notice is a formal written notification of something. By that I do not mean to suggest that a notice has to be in any particular form or use any formal language: a text from a tenant to a landlord complaining that the boiler has stopped working and the roof leaks could quite reasonably be regarded as the tenant giving the landlord a notice of disrepair for the purpose of the landlord’s repairing covenant. What I mean is that the notification has to be for some formal purpose; and in the case of a landlord and a tenant, I think that means in connection with their relationship of landlord and tenant.

On the basis of this definition, Nugee LJ concluded that the letter enclosing the EPC, GSR and How to Rent guide was a notice for the purposes of section 13.2 of the tenancy agreement. It was in writing and enclosed important documents relating to the tenancy. The purpose of the letter was to notify the tenant of those important documents (see paragraph 61).

As such, the landlords were entitled to rely on clause 13.2 and deemed service in relation to the letter attaching the documents and, therefore, in relation to the documents themselves (see paragraph 63).

The appeal was, therefore, dismissed.

Comment

It appears that there was a desire not to undo a possession order which had been made and upheld on appeal at County Court level and not to pace too high a burden on landlords who had, at least on their evidence, taken the steps required to serve the relevant documents. Proving receipt of documents absent personal service is a difficult exercise and the Court of Appeal’s decision appears to recognise this fact.

The finding in relation to clause 13.2 appears to be open to challenge on the basis that deemed service in relation to the ‘notice’ (the letter attaching the documents) has been expanded to include all documents said to be attached to the notice. What happens if a tenant accepts they received a letter but claim one of the attachments were missing? It is hardly unheard of for errors in copying and including documents to occur. Ultimately, this would seem to become a factual issue for the court to resolve at first instance, which to some extent undermines the purpose of deemed service.

For landlords, this decision makes reliance on deemed service of prescribed documents easier where a clause in the tenancy provides for it. But care should be taken to evidence exactly what is attached to any letter that is sent and personal delivery with a certificate of service and photographic evidence may still be preferred if a dispute is anticipated.

Article by Adam Smith-Roberts