Reported Case

The Court of Appeal has handed down a significant decision in Khan v D’Aubigny, providing critical guidance on the service of statutory documents and notices in landlord-tenant disputes. This case addressed the applicability of the Interpretation Act 1978, common law presumptions, and tenancy agreement provisions, while also clarifying the definition of a “notice.”

The dispute arose when the landlords (the Khans) sought possession of a property under section 21 of the Housing Act 1988, requiring the tenant, our client (D’Aubigny) to have received a valid section 21 notice. While the tenant acknowledged receipt of the section 21 notice, she argued that the landlords had failed to provide the required gas safety certificate, energy performance certificate (EPC), and How to Rent guide—documents that must be served before a section 21 notice can take effect.

The landlords asserted that the documents had been served correctly by post and recorded delivery, raising three key defences:

1. Interpretation Act 1978: They argued that section 7 of the Act applied, meaning that once they proved the documents were correctly addressed and posted, the burden of proof shifted to the tenant to show non-receipt. They contended that the tenant’s denial of receipt was insufficient..
2. Tenancy Agreement Clause: The landlords relied on a clause in the tenancy agreement stating that “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.”
3. Common Law Presumption: Under common law, they argued that a properly addressed and posted letter is presumed to have been received unless credible evidence to the contrary is provided.

The tenant contested all three arguments, claiming that the Interpretation Act 1978 did not apply to the Housing Act 1988, that the gas safety certificate, EPC, and How to Rent guide were not “notices” under the tenancy agreement, and that the common law presumption had been rebutted.

The lower courts found in favour of the landlords, granting and upholding a possession order. The tenant’s appeal to the Court of Appeal was dismissed, with the court siding with the landlords on the second and third points.

Key Findings from the Court of Appeal

1. Interpretation Act 1978 Not Applicable
   The Court clarified that section 7 of the Interpretation Act 1978 applies only where a statute explicitly refers to service “by post.” Merely allowing or permitting service by post is insufficient. As a result, the Act does not apply to section 21 notices under the Housing Act 1988 or associated documents such as gas safety certificates, EPCs or How to Rent Guide.
2. Documents Constituted a “Notice” Under the Tenancy Agreement
   The Court held that the gas safety certificate, EPC, and How to Rent Guide qualified as “notices” under the terms of the tenancy agreement. A “notice” was defined broadly as a formal written notification for a specific purpose. The letter enclosing these documents met this definition, satisfying the tenancy agreement clause regarding service by post.
3. Common Law Presumption of Service Applied
   At common law, a correctly addressed and posted letter is presumed to be delivered unless the recipient can provide sufficient evidence to prove otherwise. The tenant’s denial of receipt, unsupported by additional evidence, failed to rebut this presumption, validating the landlords’ service of documents.

Conclusion

The Court of Appeal’s judgment emphasises the importance of precise service provisions in tenancy agreements and sets clear limitations on the application of the Interpretation Act 1978 in landlord-tenant disputes. While landlords must continue to exercise caution when serving documents, this decision reinforces the reliability of tenancy agreement clauses. The rebuttable presumption in question may ultimately hinge on the court's interpretation of the context and the credibility of witnesses during trial.

For expert advice on tenancy disputes or possession proceedings, contact the Housing Team at Duncan Lewis Solicitors.

The tenants were represented by Housing Director Manjinder Kaur Atwal and Solicitor Vincent Davis. Counsel were Martin Westgate KC, Matthew Lee (both from Doughty Street Chambers) and Tim Jones from Garden Court Chambers.

Duncan Lewis’ Housing Team

Duncan Lewis' Housing team, ranked by The Legal 500 directory as a Top Tier practice for its services, offers both publicly funded (legal aid) and privately funded legal services from 14 key offices nationwide. Duncan Lewis Housing Solicitors can guide clients in any matter or issues arising with local housing authorities, housing applications, tenants, landlords, ownership and repairs. With a niche expertise in unlawful eviction, disrepair and homelessness matters the team offers representation in all proceedings including reviews, appeals and judicial review proceedings.

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View the full case on bailii at: https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2022/11.html&query=(anor)

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