Freetown v Assethold Ltd

Where an Act authorises service by post, section 7 of the Interpretation Act 1978 supplies the incorporated meaning of service unless the relevant enactment reveals a contrary intention expressly or by necessary implication. Service is deemed to occur when the document would ordinarily be delivered, subject to proof of actual non-receipt.

Section 15 of the Party Wall etc Act 1996 reveals no contrary intention. Its language, context and personal-delivery alternatives support receipt as the governing concept. The special rule under section 23 of the Landlord and Tenant Act 1927, under which registered posting effects service, depends upon materially different wording and context and should not be extended by analogy.

A third surveyor made a party wall award concerning proposed works to adjoining properties. The award was posted on 22 or 23 July 2011 and received by the appellant on 25 July. The appellant lodged its county court appeal on 8 August.

Section 10(17) of the Party Wall etc Act 1996 allowed 14 days from service of the award for an appeal. The Recorder and Slade J held that service occurred upon posting, applying the reasoning concerning registered post in C A Webber (Transport) Ltd v Railtrack plc [2004] 1 WLR 320.

The central issue was whether section 7 of the Interpretation Act 1978 applied to section 15 of the 1996 Act, so that service occurred upon actual or deemed receipt rather than posting.

1. Appeal allowed. Section 7 of the Interpretation Act 1978 applied to service by post under section 15 of the Party Wall etc Act 1996. The award was served when received, rather than when posted. The appellant’s appeal to the county court was therefore in time.

2. Section 7 supplies the statutory meaning of service by post unless a contrary intention appears in the enactment concerned. The proper inquiry is whether incorporating section 7 would produce an express or necessarily implied contradiction or inconsistency. Section 7 deems service to occur when the letter would ordinarily be delivered. The sender must prove that it was properly addressed, prepaid and posted; the addressee may rebut the presumption of receipt.

3. Nothing in the language of section 15 was incompatible with that code. The provision repeatedly refers to service on a person, while its personal-delivery methods contemplate receipt. The postal alternatives should not be construed as achieving something materially short of their delivery counterparts. Section 15(2), which separately permits delivery at or affixing a notice to premises, reinforced that conclusion.

4. Excluding section 7 would also produce an improbable and unfair result. A document could be treated as served although it was never received, and the Act’s short 14-day periods could be eroded by postal delay. These considerations supported, but did not replace, the conclusion derived from the statutory language.

5. C A Webber (Transport) Ltd v Railtrack plc [2004] 1 WLR 320 did not govern the issue. It concerned section 23 of the Landlord and Tenant Act 1927, which specifically authorised registered post and had materially different wording and context. Much of that line of authority had developed without considering section 7. Its reasoning should not be extended to section 15 of the 1996 Act.

6. It was unnecessary to determine the alternative argument under section 3 of the Human Rights Act 1998. Rix LJ gave the judgment. Patten LJ and the Chancellor agreed.

1. Court of Appeal (Civil Division): The appeal was allowed. The court held that section 7 of the Interpretation Act 1978 applied and that the party wall award was served upon receipt.

2. High Court, Queen’s Bench Division: Slade J upheld the Recorder’s decision, holding that section 15 of the Party Wall etc Act 1996 was not materially distinguishable from section 23 of the Landlord and Tenant Act 1927 and that service occurred upon posting.

3. County Court: Recorder Hochhauser QC held that he was bound by C A Webber (Transport) Ltd v Railtrack plc [2004] 1 WLR 320 and that the award was served when posted.