Terry v Tower Hamlets

For service by post under the statutory postal deeming provision, the ordinary civil standard of proof applies. A notice claiming the right to buy may be served on the landlord through an authorised agent, including an employee or agent who receives and processes the landlord’s mail. Where a tenant proves posting and the landlord cannot prove non-receipt on the balance of probabilities, service is established for the relevant statutory deadline.

The claimant, an elderly secure tenant, sought to exercise the statutory right to buy his flat. The dispute concerned whether his form RTB1 had been served before 26 March 2003, when the applicable discount rules changed. He maintained that the form had been posted to the defendant’s Central Right to Buy Section on 6 March 2003. The defendant accepted receipt on 10 June 2003 but disputed earlier service.

The court also had to determine whether service under section 122(1) of the Housing Act 1985 had to be made directly on the defendant or could be effected through an authorised agent receiving departmental mail.

1. The claimant established, on the evidence, that the RTB1 form was sent by first-class post on 6 March 2003.
2. Under section 7 of the Interpretation Act 1978, proper addressing, pre-payment and posting ordinarily deem service to occur when delivery would take place in the ordinary course of post. The standard of proof applicable to the statutory presumption was the ordinary civil standard, namely the balance of probabilities, following Chiswell v Griffon Land & Estates [1975] 2 All ER 665.
3. Section 122(1) of the Housing Act 1985 required written notice to be served on the landlord. The landlord was the defendant local authority, rather than an individual officer named in the tenancy documentation.
4. Service could be effected when the RTB1 was received by an agent authorised to receive it on the defendant’s behalf. The defendant’s driver, who collected mail addressed to its Home Ownership Department from the Royal Mail delivery office, acted in that capacity.
5. The defendant failed to prove, on the balance of probabilities, that it had not received the form before 26 March 2003. The internal stages through which the mail passed, together with evidence that the defendant’s procedures had not operated efficiently in the litigation and in handling the claimant’s application, made mislaying by the defendant more likely than non-receipt.
6. The court concluded that the claimant had sent the RTB1 on 6 March 2003 and that the defendant had not disproved receipt before the statutory deadline. Relief remained to be determined after submissions.

The claim was transferred from the Administrative Court to the Queen’s Bench Division. The judgment records earlier procedural orders by Charles J and Munby J, but no prior merits decision or appeal.