Kameel Khan & Anor v Elena D'Aubigny

The Court of Appeal considered whether s. 7 of the Interpretation Act 1978 applies where a statutory provision requires a document to be given but does not expressly refer to service by post. The court held that s. 7 is concerned with provisions that expressly authorise or require service by post and does not apply merely because a statute uses words such as "give" or "send". The court therefore rejected the contention that s. 7 applied to the statutory requirements to provide an Energy Performance Certificate, a Gas Safety Record and the "How to Rent" leaflet.

However, the landlords relied alternatively on clause 13.2 of the tenancy agreement, which deemed notices sent to the tenant by first class post to be received on the second working day after posting. The court held that the covering letter enclosing the EPC, GSR and How to Rent was a "notice sent to the Tenant under or in connection with this agreement" within clause 13.2 and, applying that contractual deeming provision, the documents were treated as received prior to service of the section 21 notice. The appeal was dismissed on that basis.

Background and parties:

• Claimants/respondents: Dr Kameel Khan and Mrs Julia Randell-Khan, leasehold owners and landlords of a flat let under an assured shorthold tenancy.
• Defendant/appellant: Mrs Elena D'Aubigny, tenant.
• Intervener: National Residential Landlords Association (written submissions).

Nature of the claim and procedural history:

• The Khans sought possession relying on a notice under s. 21 Housing Act 1988. The tenant contended that the s. 21 notice was invalid because the landlords had not given the tenant an Energy Performance Certificate (EPC), a Gas Safety Record (GSR) and the document "How to rent", which are prescribed requirements preventing service of a s. 21 notice while in breach.
• At first instance DDJ Davis found the documents had been posted on 3 March 2020 and, relying on s. 7 Interpretation Act 1978 and alternatively clause 13.2 of the tenancy agreement, held they were deemed served and granted possession. HHJ Baucher on first appeal (1 December 2023) upheld that decision. The present appeal followed to the Court of Appeal.

Issues framed by the court:

• Whether s. 7 Interpretation Act 1978 applies where a statutory provision requires a document to be given but does not expressly authorise or require service by post.
• Whether the EPC, GSR and How to Rent, or the letter enclosing them, were "notices sent to the Tenant under or in connection with this agreement" within clause 13.2 of the tenancy agreement.
• In the absence of deemed service, whether service would nonetheless have been proved at common law.

Court reasoning and conclusions:

• On statutory construction the court held that s. 7 IA 1978 is directed to references to service "by post" and to provisions which expressly authorise or require service by post. The Interpretation Act is an Act of interpretation and s. 7 should be read in that context; its predecessor s. 26 IA 1889 likewise concerned service "by post". Accordingly s. 7 did not apply to the statutory provisions requiring the EPC, GSR and How to Rent because those provisions did not expressly refer to service by post.
• The court held that the covering letter enclosing the documents was a formal written notification in the landlord-tenant relationship and thus fell within the ordinary meaning of "notice" in clause 13.2. That clause therefore operated to deem the letter (and so the enclosed documents) as received on the second working day after posting; that deeming provision was not subject to a statutory-style rebuttal and brought the documents within the prerequisites for a valid s. 21 notice.
• The court observed there exists a common-law rebuttable presumption of delivery where a properly addressed and posted letter is proved to have been posted, but it was unnecessary to decide the point because clause 13.2 provided a contractual deeming answer. The lower-court finding that the documents had been posted and not returned was unchallenged and decisive under clause 13.2.

Disposition:

• The appeal was dismissed. The Court of Appeal allowed the lower courts' possession orders to stand but rejected the application of s. 7 IA 1978.

This is an appeal dismissed. The Court of Appeal held that s. 7 of the Interpretation Act 1978 applies only where the statutory provision expressly authorises or requires service by post; it does not apply simply because a statute uses words such as "give" or "send". The statutory requirements to provide an EPC, GSR and How to Rent therefore did not attract s. 7. The landlords nonetheless established deemed service by reliance on clause 13.2 of the tenancy agreement: the covering letter enclosing those documents was a "notice" sent "in connection with" the agreement and, by the contractual deeming rule, was treated as received on the second working day after posting, validating the s. 21 notice and justifying the possession order.

Second appeal from the County Court at Wandsworth (trial before Deputy District Judge Davis, 30 March 2023). First appeal to the County Court (HHJ Baucher) dismissed (judgment 1 December 2023). Permission to appeal to the Court of Appeal was granted (case in the Court of Appeal: CA-2023-002567), judgment delivered by the Court of Appeal [2025] EWCA Civ 11 (17 January 2025).