Beanby Estates Ltd v The Egg Stores (Stamford Hill) Ltd

The court determined the deemed date of service for notices under section 23 of the Landlord and Tenant Act 1927 (applied to the 1954 Act by section 66(4)). The judge held that where a section 25 notice under the 1954 Act is sent by recorded delivery to the addressee at his place of abode, service is effected by the act of properly addressing and posting the recorded delivery letter and is therefore to be treated as served on the date of posting. The court considered the interaction between section 23 and section 7 of the Interpretation Act 1978 and addressed competing Court of Appeal and first instance authorities, concluding that the weight of authority and principle supported the landlord's position. The Human Rights Act 1998 (section 3) was considered but, on the facts, there was no breach of Convention rights because the statutory scheme legitimately promotes procedural certainty.

This was an appeal by the landlord from a decision of HHJ Cotran (Central London County Court) determining a preliminary point about the date on which a section 25 notice under the Landlord and Tenant Act 1954 was to be treated as served. The landlord posted a section 25 notice by recorded delivery on 7 January 2002; the tenant actually received it on 9 January 2002, served a counter-notice and applied for a new tenancy within the tenant's view of the relevant time limit. The landlord argued that, by virtue of section 66(4) of the 1954 Act (which imports section 23 of the 1927 Act), service was effected on the date of posting; the tenant argued either for an implied provision treating service as on the ordinary course of post or that section 23 should be read subject to section 7 of the Interpretation Act 1978 so that the statutory deeming should be rebuttable.

The court reviewed the authorities (including Chiswell, Galinski, Lex Service, Railtrack, Mustapha and Blunden) and the policy considerations of certainty and allocation of risk inherent in section 23. The judge accepted that the line of authority supporting irrebuttable deemed service on posting was strong and concluded it was not clearly wrong. He examined the human rights argument based on the Human Rights Act 1998 (section 3) and Article 6-type considerations and concluded that the statutory balance in section 23 (certainty and allocation of risk) did not give rise to an incompatibility or breach on the facts of this case. The court therefore allowed the landlord's appeal and awarded costs to the landlord for the appeal and half the costs below.

Appeal allowed. The court held that, for the purposes of notices under the 1954 Act as read with section 23 of the 1927 Act, service by recorded delivery to the addressee at his place of abode is effective on posting (deemed service on posting). The court rejected the tenant's arguments that an implied provision should alter the deemed date or that section 23 must be read subject to section 7 of the Interpretation Act 1978 in this context. The Human Rights Act point did not alter that conclusion on the facts.

Preliminary issue determined by HHJ Cotran in the Central London County Court on 21 January 2003 in favour of the tenant; landlord appealed to the High Court (EWHC Chancery) and this judgment was handed down on 9 May 2003 ([2003] EWHC 1252 (Ch)).