Lawbite: Court of Appeal saves defective statutory notices

• United Kingdom

• Litigation and dispute management
• Real estate
• Real estate dispute resolution
• Real estate litigation - LawBite

09-03-2020

Nigel Crighton Pease v Jeffrey William Carter and Louise Mary Carter [2020] EWCA Civ 175

A recent Court of Appeal decision found that notices of proceedings for possession under s.8 of the Housing Act 1988 were valid despite an error in a key date in the notice. In its decision the court set out some helpful guidance as to the interpretation of statutory notices.

In order to be valid, notices under s.8 must include a date, being the earliest date after which court proceedings can be brought. That date must allow for the minimum period of notice required – in this case, two weeks ‘ notice.

The notices were served on 7 November 2018 but stated that proceedings would not begin until after 26 November 2017 (rather than 2018).

At first instance the notices were found to be invalid due to the error. However, the Court of Appeal disagreed and its decision helpfully drew together the authorities on interpreting statutory notices. This therefore is applicable to all property notices.

One of the key cases on the validity of notices is the 1997 House of Lords decision in Mannai Investment Co Ltd, where they found that minor defects would not necessarily invalidate notices provided the reasonable recipient of the notice would have understood its intention.

Subsequent cases have considered whether the Mannai test can apply to statutory notices and after reviewing these the court in this decision concluded that:

1.   A statutory notice is to be interpreted in accordance with Mannai

2.   If a reasonable recipient would appreciate that the notice contained an error and appreciate what meaning the notice was intended to convey, then that is how the notice is to be interpreted

3.   It is still necessary to consider whether, so interpreted, the notice complies with the relevant statutory requirements which involves considering the purpose of those requirements

4.   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

Key in this case was that there was an obvious typographical error as the date inserted pre-dated the date of the notice – a reasonable recipient would have concluded that 26 November 2018 was the intended date. The fact that the covering letters referred to 26 November 2018 would have left a reasonable recipient in no doubt as to the intended date. Given this, the purpose of the notice – to give two weeks’ notice – was satisfied.

Key points

• whilst Mannai may save an otherwise defective notice, the preferred option is clearly to avoid errors in notices in the first instance, which means taking care to ensure statutory or contractual requirements as to the form, content and notice requirements are complied with 
• if errors are detected early on after service, consider whether it is appropriate to serve a further (valid) notice, without prejudice to the first