SERVICE OF NOTICES TO QUIT
Auliffe v Ellis – High Court (on Appeal from the Exeter County Court)
This is a case in which I acted for the successful Claimants (and Respondents on Appeal) concerning the service of a Case G Notice to Quit on the death of the tenant of an Agricultural Holdings 1986 Act tenancy and the associated risks of relying exclusively on Royal Mail delivery. Rebecca Cattermole of Tanfield Chambers was retained as Counsel and did the trial advocacy at first instance and on appeal.
The service of notices has given rise to numerous cases across the entirety of the landlord and tenant sector, not least because sometimes a failure to serve notices can have catastrophic long- term consequences for either or both parties.
The decision of HHJ Gore QC in Auliffe and Others v Ellis and another [2018] casts useful light on the question of what constitutes good service of a notice; the Judgment of Baker J (dismissing the Appeal) also reinforces previous appellate decisions in setting the parameters within which the appellate Court can and should review the Judge at first instance.
Facts:
The Auliffe siblings (Graham, Michael and Elaine), the Landlords and Claimants in these proceedings, owned 50 acres of farmland and buildings called Teign Marsh, near Chagford, Devon. Until his death on 19th March 2013 the Holding had been occupied by a tenant, David Ellis. Following his death, his widow and Personal Representative, Mrs Susan Ellis sent what is commonly called a “trigger letter” to the Landlords informing them that her husband had died. In August 2013 the Claimants instructed their solicitors, FBC Manby Bowdler to serve a Case G Notice to Quit.
Manby’s sent Notices to Quit separately to Mrs Ellis and to her son Richard Ellis on 3 September 2013, by both ordinary first class post and by registered post. Notices were also sent to the Public Trustee.
On 16 September 2013, Manby’s wrote again to Mrs Ellis and her son, and again by first class post and by registered post, enclosing a copy of the acknowledgement that had been received from the Public Trustee. In all, a total of 8 letters were sent to Mrs Ellis and her son, 4 of which were sent by the “signed for” postal system.
On expiry of the notice to quit the Landlords brought a claim for possession of the farm against Mrs Ellis, which was heard on 13 April 2018 in the Exeter County Court.
Decision at First Instance:
The issue for the Court was whether there had been good service of any of the Notices to Quit. An issue was raised by Mrs Ellis in her defence of the proceedings as to whether the proper address for service had been used for the notices to quit. The trigger letter had been sent by Mrs Ellis and her son from an address which began “Greatastones”; the Notice to Quit had been sent to “Greatastone Farm”. That was the address that appeared on the original Tenancy Agreement and was an address that had previously been used for correspondence with the tenant, when he was alive.
The issue to be determined by the Court was very simply whether the Notice to Quit had been served on Mrs Ellis.
The Notice to Quit was served under the Agricultural Holdings Act 1986 (“1986 Act”). Section 93 of the 1986 Act affords special service provisions for notices or other documents to be served under the Act. It provides that any notice is served if it is sent to the recipient’s proper address in a registered letter or by the recorded delivery service.
Section 94 of the 1986 Act defines the proper address as being the last known address of the person in question.
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 considered these points in Calladine- Smith v Saveorder Limited [2011] in recognising what has become a two stage test. The first stage is that if the Court finds that the letter in question has been put in an envelope, properly addressed, pre-paid and then posted it is deemed or presumed to have been served. The burden of proof rests with the sender of the letter to raise that presumption.
However, the second limb of the test is that the burden is then placed upon the addressee to show that, on the balance of probabilities, the letter was not delivered or served or received.
As Morgan J said in the Calladine-Smith case,
“It seems to me quite clear that the reference to something being proved in this context is a reference to something being proved on the balance of probability. Accordingly, if the addressee of the letter proves on the balance of probability that the letter was not served upon him, then that matter has been proved and the section should be applied accordingly”.
However, as Morgan J remarked, the recipient cannot simply say that the Notice has not been received. It requires something more.
The Judge in this case was satisfied that the addresses “Greatastones” and “Greatastone Farm” were inter- changeable and that on the facts of this case, either was a proper address for service. Accordingly, the first limb of the test, raising the presumption of service, was satisfied.
What HHJ Gore QC had to decide was whether the second limb (non-delivery) was established by Mrs Ellis. The burden of proof fell on her so to do.
As the Judge remarked during his summing up, he was faced with two improbabilities. The first improbability was that Mrs Ellis, had she received the Notice to Quit, would not have sought advice about it. The second improbability was that, having committed eight letters to the post, none of them had been returned to FBC through the Royal Mail dead letter service.
The Judge said that he had to decide on the balance of probabilities which improbability was the most likely. The Judge determined this issue, on the facts of the case, in favour of the Claimants. The Defendant appealed to the High Court.
The Appeal:
The Appeal was heard by Mr Justice Baker on 7 June 2019. His judgment is an object lesson in identifying what the Appellate Court’s role and function is and when it is appropriate (or inappropriate) to invite an Appellate Court to consider whether the judge at first instance erred as a matter of law.
Mr Justice Baker was very clear that the Court’s function is not the discovery of the truth (which may seem alien to the public perception of what our Judicial system is there to determine) but “to identify what needs to be proved, by whom, upon the basis of a correct identification and analysis of the legal rules governing the case; and then to form a judgment”. So, the purpose of a trial is not to seek the truth but is an assessment on the balance of probabilities which may well lead to the discovery of a truth but that is simply the product of the enquiry.
In many respects, this was not a difficult Appeal to resolve in the Respondents’ favour. After reviewing the Judge’s findings and considering the various grounds of the Appeal and dismissing each one, he said “none of the grounds…is well founded…The Judge’s reasoning contains one minor error…but that one error does not justify overturning the result of this trial. [The Judge] conducted, and his judgment discloses, a fair and balanced consideration of the evidence and of the submissions upon that evidence advanced by the parties at trial. There was ample evidential basis, and ample good reason, for rejecting Mrs Ellis’ and Richard’s evidence that the notice to quit had not been delivered in September 2013, in time to be effective, as by s.7 of the Interpretation Act 1978 it was rebuttably presumed to have been. Mrs Ellis, through the evidence and argument she presented at trial, did not persuade the judge to find it more probable than not that the notice to quit was not delivered. There is no basis upon which, sitting on appeal, I could say that the judge, to the contrary, should have been persuaded. If I had to judge the matter on the documentary record (including now the trial transcript) I would also not be persuaded by Mrs Ellis’ case. The judge having conducted the trial, certainly I cannot say he was wrong not to be so persuaded”.
Consequences of the Judgment:
The question arises, “is it still safe for landlords and tenants to send formal notices to each other through the post by the registered or the recorded delivery service alone?”.
It might be argued that it remains perfectly safe to do so, if one then checks with the Royal Mail, that the letter enclosing the notice has actually been signed for.
If however the document is being sent close to a deadline, the postage option carries some obvious risks; there simply may not be enough time left within which to check with Royal Mail that the letter has been signed for, before the deadline expires. Furthermore, if the letter is delivered to the wrong address, but is still signed for, the sender may not know that it was someone else, not the intended recipient, that had signed the receipt.
In this case the whole question became more significant because, had the notice not been properly served, it was common ground that the tenancy would then have vested in the deceased tenant’s Personal Representatives and, effectively, would have continued forever; the administration of the deceased tenant’s Estate would never be concluded and as the Personal Representatives died one by one they would simply have been replaced by new Personal Representatives.
In practical terms, if time is not pressing, it is perfectly sensible to serve a notice, at a proper address for service, by posting it by Royal Mail registered or recorded delivery service (now known as “signed for” service).
In these circumstances, whilst HHJ Gorer observed that there is no legal requirement on the sender to check with the Royal Mail that the recipient has signed for receipt, it would be good practice to do so. The sender should also check that the person signing for receipt is in fact the intended recipient.
However, if time is short the safest way to guarantee service is by personal service, supported by a witness statement to that effect. Given that disputes like this can cost many thousands of pounds to resolve and inevitably, as the Judge said “catastrophe will be visited on one party or the other”, a few hundred pounds spent on arranging personal service might be seen as a good insurance policy.
Although this case arose in the context of an agricultural holding governed by the 1986 Act, it will be of far wider significance, as the same principles apply in respect of farm business tenancies, as well as commercial and residential lettings.
© Miles Farren
6 May 2020
Contact: Miles Farren, Ebery Williams
Case Citation: Auliffe v Ellis EWHC 1427 (QB) (7 June 2019)
Link to Judgment (Appeal): https://www.casemine.com/judgement/uk/5cff59cd2c94e0222e0ef5da