Freetown Ltd v Assethold Ltd

Where legislation specifies service by post as a primary method of service, service is ordinarily effected when the document is posted, rather than when it is received. That construction may constitute a contrary intention displacing the deemed-service rule in section 7 of the Interpretation Act 1978. A short statutory appeal period and the possibility of postal delay do not, without more, justify adopting receipt as the date of service. Nor does that construction necessarily infringe article 6 or article 1 of the First Protocol to the ECHR where it provides certainty and a fair allocation of risk.

Freetown, the freeholder of adjoining land, appealed against a party wall award made by a third surveyor under the Party Walls etc. Act 1996. The County Court struck out the statutory appeal as out of time. The award had been posted on 22 or 23 July 2011, received on 25 July, and the appeal was lodged on 8 August.

The central issue was whether the 14-day period under section 10(17) began when the award was posted under section 15, or when it was received or deemed to have been received.

1. Appeal dismissed. The statutory appeal was lodged out of time.
2. Section 15 of the Party Walls etc. Act 1996 specifies sending by post as a primary method of service. Its wording is materially indistinguishable from section 23 of the Landlord and Tenant Act 1927, as construed in CA Webber (Transport) Ltd v Railtrack Plc [2004] 1 WLR 320.
3. Applying Webber, service by post under section 15 is effected when the award is consigned to the post. Section 7 of the Interpretation Act 1978 does not apply because section 15 shows a contrary intention. The posting rule provides greater certainty and avoids disputes about receipt.
4. The fact that ordinary post may leave a party with less than 14 days to appeal, and that the Act provides no extension of time, was insufficient to displace the statutory construction.
5. Section 3(1) of the Human Rights Act 1998 did not require section 15 to be construed as making receipt the date of service. The posting rule was not incompatible with the Convention rights relied upon.
6. The award was served on 22 or 23 July 2011. The appeal lodged on 8 August 2011 was therefore out of time.

1. High Court (Queen's Bench Division): appeal from the County Court dismissed. The County Court's order striking out the statutory appeal as out of time was upheld.