Kameel Khan & Anor v Elena D'Aubigny

Interpretation Act 1978, section 7 applies only where an enactment authorises or requires a document to be served by post. It does not apply merely because a provision requires a document to be given, where postal service is permitted under the general law. A contractual deeming clause may nevertheless govern service. A letter enclosing an Energy Performance Certificate, Gas Safety Record and How to Rent document can constitute a formal written notice connected with a tenancy. If sent in accordance with the clause, it may be deemed received even though the enclosed documents are required by statute.

The landlords sought possession of a flat let under an assured shorthold tenancy. They relied on a notice under section 21 of the Housing Act 1988. The tenant argued that the notice was invalid because she had not received the required Energy Performance Certificate, Gas Safety Record and How to Rent document.

The County Court at Wandsworth granted possession. Her Honour Judge Baucher dismissed the first appeal on 1 December 2023, upholding reliance on section 7 of the Interpretation Act 1978 and clause 13.2 of the tenancy agreement. The second appeal concerned the construction of section 7, the scope of clause 13.2, and service at common law.

Disposition

The Court of Appeal dismissed the appeal. Lord Justice Nugee gave the judgment, with Lord Justice Newey and Mr Justice Cobb agreeing.

1. Section 7 of the Interpretation Act 1978. The statutory deeming provision applies where an Act or subordinate legislation authorises or requires a document to be served by post. A provision which merely requires a document to be given, even though postal delivery is permitted under the general law, does not itself authorise service by post for the purposes of section 7. The wording and heading of section 7, together with its predecessor, section 26 of the Interpretation Act 1889, supported that construction. Ground 1 therefore succeeded.
2. Clause 13.2 of the tenancy agreement. A notice is not confined to a document labelled as such or exercising a statutory right. In this contractual context it meant a formal written notification for a formal purpose connected with the landlord-and-tenant relationship. The letter enclosing the Energy Performance Certificate, Gas Safety Record and How to Rent document satisfied that description. The documents were also sent in connection with the tenancy because the statutory duties arose from that relationship and affected the ability to serve a section 21 notice.
3. Deemed receipt. The letter had been sent by first-class post to the property. Clause 13.3.2 deemed it received on the second Working Day after posting, without a provision permitting rebuttal. The documents were therefore properly served before the section 21 notice. Ground 2 failed and this was sufficient to dismiss the appeal.
4. Common-law service. The Court considered, obiter, that posting a properly addressed and prepaid letter raises a rebuttable common-law presumption of receipt. The unappealed finding that the tenant had not rebutted the statutory presumption would equally have defeated the challenge at common law. The Court also explained that a denial of receipt is not automatically insufficient; the court must assess it with the other evidence and any credibility findings. The general requirement to challenge material evidence in cross-examination was reaffirmed by reference to Griffiths v TUI (UK) Ltd [2023] UKSC 48.

1. Court of Appeal (Civil Division) — accepted the challenge to section 7 of the Interpretation Act 1978, but dismissed the appeal because clause 13.2 of the tenancy agreement deemed service effective: [2025] EWCA Civ 11.
2. County Court at Wandsworth — Deputy District Judge Davis granted possession on 30 March 2023. Her Honour Judge Baucher dismissed the first appeal on 1 December 2023.