Tenancy Notices: the risks of a Royal Mail delivery one year on
In the Spring 2018 edition of Agricultural Lore we reported on the County Court decision of Auliffe and Others v Ellis , a case concerned with the service of documents (in that case, a Case G Notice to Quit under the Agricultural Holdings Act 1986). The decision was subsequently appealed by Mrs Ellis and Judgment in the appeal was handed down on 7th June 2019. In dismissing all six grounds of appeal the Judge expressed some interesting views on both the appeal of findings of fact and also on the need to follow-up and check on the receipt of any notice. We highlight the effect of the Judge's comments and consider whether they create a new obligation to confirm delivery.
The legal background
To recap, Section 7 of the Interpretation Act 1978 provides that where 'an act authorises or requires any document to be served by post… 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 have been delivered in the ordinary course of post'.
Mr Justice Morgan had considered this principle in Calladine-Smith v Saveorder Limited  recognising what has become a two stage test.
- The first stage requires the sender to establish that the notice was sent in accordance with Section 7 (properly addressed, prepaid and posted) thereby raising the presumption of service.
- The second stage is for the intended recipient to establish that, on the balance of probabilities, the letter was not delivered or served or received. As Morgan J put it, that requires the intended recipient to evidence something more than simply 'I never received it'.
Mrs Ellis appealed the decision of HHJ Gore QC, who had decided that her late husband's tenancy had been validly terminated by the service of a notice to quit. The appeal relied on six grounds which came before Mr Justice Andrew Baker sitting in the High Court in Bristol in March 2019. He handed Judgment down on 7 June 2019.
In dismissing the appeal on all six grounds, Andrew Baker J had regard to the general principles and rules that apply where an appellate court is considering the findings of fact below. He reaffirmed that, only in exceptional circumstances, should the appellate court interfere with findings of fact made by the Trial Judge, not least because the appellate court does not get to see the witnesses.
Since much of this case hinged on witness credibility, in particular, the credibility of Mrs Ellis and her son, it was always going to be an uphill task for her to succeed on appeal where the findings against her by Judge Gore on the question of credibility were so damaging.
Counsel for Mrs Ellis, Mr William Batstone sought to argue that while her credibility was damaged on one issue, it should not impact adversely on any other issues. Her credibility was damaged by her insistence that the fact that she did not receive the 4 letters enclosing the notices to quit, together with a further four letters was a result of the landlords using the 'wrong address'. This was a point she insisted on making at trial, despite having made admissions that post had been received whether addressed to "Greatastones" or "Greatastone Farm" and other variations of the address. The issue for the Trial Judge (and upheld on appeal) was that, having had her credibility damaged in that respect, it was perfectly fair and reasonable to be circumspect about the rest of her evidence, where it was not corroborated independently.
Overturning findings of fact
Andrew Baker J cited the decision in Walsh v Kirklees BC  that 'it is well-established that appellate courts have to be very cautious in overturning findings of fact made by a Trial Judge' and 'this is because Trial Judges have seen witnesses and take into account the whole 'sea' of the evidence, rather than indulge in impermissible 'island hopping', and because duplication of effort on appeal is undesirable and will increase costs and delay'. The Judge also supported the view that 'appellate courts will only interfere if the Trial Judge was plainly wrong'.
Service of notices
The Auliffes' had instructed a partner at FBC Manby Bowdler Solicitors ('Manbys') to serve the notices to quit. He accepted the retainer and accepted that his firm owed their landlord clients a duty of care to carry out their instructions.
Manbys chose to serve the notices to quit (served on both Mrs Ellis and her son) by both registered post and ordinary first class post. Four further letters were sent to them enclosing copy acknowledgements from the Public Trustee, again two letters by registered post and two letters by first class post. Mrs Ellis and her son said none of the letters had been received.
By the time the challenge came to light (some 15 months or so later) it was too late to check with the Royal Mail whether the letters or any of them had been signed for or had been returned to the Royal Mail Belfast office under the 'dead letter' service. The Trial Judge had been mildly critical of Manbys for not having checked with the Royal Mail whether the signed for versions of the letters had indeed been signed for or which he thought would have established beyond doubt that the letters had been delivered.
A new obligation to confirm delivery?
Andrew Baker J picked up on this theme but went further; he offered this view: 'with hindsight, it is unfortunate that the Auliffes' solicitor did not check online (as would have been possible at the time) that at all events the registered letters had been delivered. Had he done so, and kept a record of any confirmation of delivery he obtained, if indeed they had been delivered, perhaps litigation might have been avoided' (emphasis added).
The Judge may have been influenced in this observation by submissions made to him on behalf of Mrs Ellis that it was 'good or best practice' to check with the Royal Mail office that signed for letters had indeed been signed for after posting. The comments of the Judge do not form part of the Judgment that creates a precedent for the future. It is merely the Judge's view about best practice, but is that right? I think not.
First, there is nothing in the 1986 Act or in the 1978 Act which places an obligation on a landlord to make such checks. The only obligation on a landlord, in order to raise the presumption of due service, is to show that the letters were properly addressed, had the correct postage and were committed to the post. That can be done by using the 'signed for' delivery service because the sender retains a part of the ticket and barcode unique to that item of post.
Secondly, consider this: if a landlord is to then accept an obligation to check with the Royal Mail service that the item has been signed for, what would be the position if the letter was delivered to the wrong address, but was still signed for and it was not possible to tell from the signature that it had not been signed for by the intended recipient? In the wider context, this might be hugely relevant when dealing with the service of documents to residential properties within blocks of flats, where very often neighbours will sign for receipt on behalf of the intended recipient, but then forget to hand the document onto them.
Thirdly, the only issue which might be resolved by and worth checking with Royal Mail is if an item had not been signed for at all, which might then alert the sender to consider alternative methods of service to ensure that deadlines were met. However, notices are very often left until very close to the end of the service period (for whatever reason) and there may be insufficient time to arrange alternative methods of service.
Fourthly, once a landlord accepts an obligation to check, which does not exist in law, he might be accountable for any failings in the process, by which he seeks to check whether delivery has been effected.
So how should notices be served?
I remain of the view that the Royal Mail 'signed for' service probably has some uses in the service of perhaps notices of lesser importance than a notice to quit. Ever more sophisticated electronic means are available to the postman to record not only a signature, but also the name of the person who signed for it.
However, the consequences of failing to serve a Case G Notice to Quit in time are so devastating for a landlord (resulting in the tenancy vesting in the deceased tenant's personal representative in perpetuity) that it has to be worth arranging personal service for notices of such importance. Where personal service is used, it is best practice (as it is where service is by post) to invite the recipient to sign and date a copy of the notice acknowledging safe service.
For more information on this topic, please contact Miles Farren.