How wrong does a notice have to be? Saving the validity of statutory notices

United KingdomScotland

Further expanding the court’s lenient approach to errors of drafting, the Court of Appeal has confirmed that the “reasonable recipient” test set out in Mannai [1997] A.C. 749 can also apply to statutory notices, in particular those served by a landlord pursuant to section 8 of the Housing Act 1988 (the “Act”) seeking possession from residential tenants.

The facts

In Pease v Carter [2020] EWCA Civ 175, the landlord served a s.8 notice on 7 November 2018 on the tenant notifying it of proceedings for possession under the Act. The Act requires that tenants are given at least two weeks’ notice of the commencement of proceedings.

The notice was signed and dated 7 November 2018 but contained an error in stating that the earliest date the proceedings would begin was 26 November 2017 (clearly intended to be 2018, as supported by a covering letter which stated the correct date).

The questions for the court to consider were:

  1. whether the statutory notice needed to be in the exact form prescribed by the Act, i.e. to state that proceedings would not begin earlier than a date not less than two weeks after the date of the notice; and
  2. if the notice did not need to be in that form, did it still satisfy its statutory purpose?

The precedent

At first instance, and also on first appeal, the judge relied on Fernandez v McDonald [2003] EWCA Civ 1219 to find that the “reasonable recipient test” did not apply to Section 8 notices.

In Fernandez, notice had been served under section 21 of the Act seeking possession, but the landlord had miscalculated the end of a payment period and specified a date for possession which was one day too early.

Hale LJ (as she then was) in suggesting that it was not clear to the reasonable recipient what the end of the payment period should be, stated that the law was “clear and precise [and not] difficult for landlords to follow” – and that therefore the notice in Fernandez was invalid as it did not comply strictly with the statutory requirements.

The decision

In this case however, in the Court of Appeal, the judge found that the reasonable recipient of the notice would realise the date was an obvious typo and would have understood the intended date was clearly 26 November 2018.

So interpreted, the notice was considered to comply with the relative statutory requirements. The purpose of the statute is to give the tenant notice warning them of the commencement of proceedings, and therefore notwithstanding the incorrect date, the notice was substantially to the same effect as the prescribed form of notice.

Takeaway points

This is a good decision for both landlords and tenants, in that it clarifies the position and confirms that Mannai will apply to most if not all notices – the courts are willing to take a ‘common sense’ approach and give weight to the intention of the parties as long as the notice satisfies any statutory purpose.

Of course, we still advise that notices are prepared carefully and served correctly, in order to avoid expensive litigation in arguing the point!