Court of Appeal Success for Trinity Housing Barrister

Alice Richardson

Trinity Housing barrister Alice Richardson represented the successful appellant in Pease v Carter & Anr [2020] EWCA Civ 175.

The Court of Appeal has held that the “reasonable recipient” test does apply to notices served under s.8 Housing Act 1988.

The background to the case is that on 7th November 2018 the landlord served Notices of Proceedings for Possession under s.8 Housing Act 1988 on the tenants. The landlord relied on discretionary grounds 10 & 11 and mandatory ground 8.

The notice was signed and dated 7th November 2018 but there was a typographical error stating that the earliest date proceedings would begin was 26th November 2017 rather than 26th November 2018.

At a first possession hearing the District Judge allowed the landlord to rely on the notice notwithstanding the error. The tenants appealed that decision.

At the first appeal the landlord relied upon the ‘reasonable recipient’ test in the Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19 line of cases. The Circuit Judge found that the reasonable recipient would have realised the date was an error and would have been in no doubt what it should have said. However, relying on Fernandez v McDonald [2003] EWCA Civ 1219 the judge held that the ‘reasonable recipient’ test did not apply to s.8 Notices and therefore the notice was invalid.

The landlord appealed to the Court of Appeal on two grounds:

i) The Judge was wrong to hold that the reasonable recipient test did not apply to section 8 notices.
ii) In the alternative, the Judge was wrong to hold that the Notices were not “substantially to the same effect” as the prescribed form.

Arnold LJ delivered the lead judgment. Having reviewed the authorities he concluded, at [39]:

i) A statutory notice is to be interpreted in accordance with Mannai v Eagle, that is to say, as it would be understood by a reasonable recipient reading it in context.
ii) If a reasonable recipient would appreciate that the notice contained an error, for example as to date, and would appreciate what meaning the notice was intended to convey, then that is how the notice is to be interpreted.
iii) It remains necessary to consider whether, so interpreted, the notice complies with the relevant statutory requirements. This involves considering the purpose of those requirements.
iv) Even if a notice, properly interpreted, does not precisely comply with the statutory requirements, it may be possible to conclude that it is “substantially to the same effect” as a prescribed form if it nevertheless fulfils the statutory purpose. This is so even if the error relates to information inserted into or omitted from the form, and not to wording used instead of the prescribed language.

The Court of Appeal considered the inter-action between Fernandez v McDonald and Spencer v Taylor [2013] EWCA Civ 1600 with LJ Underhill noting, at [57], that this had understandably caused some confusion. At [38] Arnold LJ held, contrary to the orbiter comments of Lewison LJ in Spencer v Taylor, that in Fernandez v McDonald Hale LJ (as she was) had not decided that in the case of a s.21(4) notice the court cannot correct obvious mistakes even where the reasonable recipient test was satisfied.

Allowing the appeal the Court went on to hold that:

i) Covering letters to the notice could be taken into account when determining how the reasonable recipient would have interpreted the notice [45].
ii) Statutory notices are to be interpreted in accordance with Mannai v Eagle. Contrary to what the Judge thought, Fernandez v McDonald is not authority for the proposition that this approach is inapplicable in relation to s.8 notices [47].
iii) In this case, given that the date of 26 November 2017 was an obvious typographical error and that a reasonable recipient would have understood that the intended date was 26 November 2018, the Notices did serve the statutory purpose of giving the Tenants at least two weeks’ warning of the commencement of proceedings [53].
iv) The Judge was also wrong to hold that the Notices were not “substantially to the same effect” as the prescribed form. That test applies to information inserted into the form and not just to the wording used [54].

The Court also rejected an argument by the tenant that the circuit judge had erred in concluding that it was clear to the reasonable recipient what the intended date was [44].

Alice deals with a wide range of housing law issues, including cases involving discrimination, human rights and public law/judicial review. Alice also undertakes regulatory work in the housing, property and local government sectors. She has particular experience advising on licensing schemes under the Housing Act 2004.

Alice is a member of the Attorney General’s Regional Panel of Counsel and is regularly instructed by the Government Legal Department. She has also been appointed to the Equality and Human Rights Commission Panel of Counsel.

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