Calladine -Smith v Saveorder Ltd

Section 7 of the Interpretation Act 1978 has two interlinked parts. The sender must prove that the document was properly addressed, prepaid and posted. Once that is established, the addressee may prove, on the ordinary civil standard, that the document was not delivered or served. The contrary therefore relates to the deeming provision as to delivery in the ordinary course of post, rather than to the sender’s compliance with the posting requirements. Positive evidence of what happened to the document, or knowledge by the sender of non-delivery, is not required. Where a statute requires a notice by a specified date, proof of non-receipt may establish that the notice was not served in time.

The claimant appealed from a decision of Judge Hallon in the Bromley County Court. The dispute concerned whether the respondent landlord had served a counter-notice under section 45 of the Leasehold Reform (Housing and Urban Development) Act 1993 in response to the claimant’s notice seeking a new lease.

The counter-notice had been properly addressed, prepaid and posted, but the county court judge found that the claimant had not received it. The judge nevertheless held that non-receipt did not displace the section 7 deeming provision. The central issues were what constituted the contrary which had to be proved under section 7, and whether proof required more than a finding on the balance of probabilities.

1. Appeal allowed. The counter-notice was not served on the claimant. The case therefore fell within section 49 of the Leasehold Reform (Housing and Urban Development) Act 1993, and the parties were agreed on the order giving effect to that provision.
2. Section 7 of the Interpretation Act 1978 contains two interlinked parts. The first deems service to be effected when the sender proves proper addressing, prepayment and posting. The second deems service to have occurred at the time of delivery in the ordinary course of post unless the contrary is proved.
3. The phrase the contrary is proved relates to the second part. It permits the addressee to prove that the document was delivered late or was not delivered at all. It does not require the addressee to prove a defect in addressing, prepayment or posting. The county court judge had therefore adopted the wrong legal test.
4. The word proved refers to the ordinary civil standard. The court must assess all the evidence, including witness credibility. A bare assertion of non-receipt is insufficient, but positive evidence of what happened to the document, or proof that the sender knew of non-delivery, is not a separate requirement.
5. The judge followed Chiswell v Griffon Land and Estates Ltd and rejected the submission based on Lex Service plc v Johns. The actual decision in Lex Service was treated as correct on its own statutory facts, but the passages suggesting a higher burden under section 7 were not binding when section 7 was considered alone. Later adverse treatment in C A Webber Transport Ltd v Railtrack plc further undermined that aspect of Lex Service.

• High Court (Chancery Division): On appeal from the Bromley County Court, the decision was reversed. The High Court held that the counter-notice had not been served and that section 49 of the Leasehold Reform (Housing and Urban Development) Act 1993 applied.
• Bromley County Court: Judge Hallon found that the counter-notice had been properly addressed, prepaid and posted, but had not been received. She held that the claimant had not proved the contrary for the purposes of section 7 of the Interpretation Act 1978.