On the Fifth Day of Christmas...The Case of D'Aubigny v Khan & Anor: Signed, sealed, but not delivered? Service of the Section 21 prescribed documents
On 1 December 2023, the Central London County Court delivered a significant judgment in D'Aubigny v Khan & Anor, addressing the validity of a Section 21 notice under the Housing Act 1988. The decision focuses on whether the ‘prescribed documents’ - being the Gas Safety Certificate, Energy Performance Certificate, and the "How to Rent" guide - were validly served before the Section 21 notice was issued.
Background
The tenant, Ms D'Aubigny, argued that she had not received the prescribed documents before the Section 21 notice was served, in which case, the notice would have been invalid. Further, she contended that the deemed service clause only related to ‘notices’ and not the prescribed documents.
The landlords maintained that the documents had been served by post and invoked Section 7 of the Interpretation Act 1978. This provision establishes that service is deemed effective when documents are:
- properly addressed;
- pre-paid; and
- posted.
This means that, if these three points are demonstrated by the sender, the recipient would have to prove that the documents were not received.
Key issues on appeal
Two main issues arose on appeal:
1. Application of Section 7 of the Interpretation Act 1978
Whether Section 7 applies to the service of prescribed documents under the Housing Act, thereby allowing service by post to be deemed effective. Section 7 applies where “an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used)”.
Neither the Housing Act nor legislation relating to the ‘prescribed documents’ expressly authorises or requires the prescribed documents to be served by post. The legislation simply states that such documents have to be ‘given’.
2. Interpretation of the tenancy agreement’s service clause
Whether the service clause in the tenancy agreement, which provided for “notices sent under or in connection with this agreement" to be deemed served if served by post, covered the prescribed documents, or only applied to notices.
Judgment
Her Honour Judge Baucher dismissed the appeal, upholding the lower court’s decision.
Section 7 of the Interpretation Act applies
The court confirmed that Section 7 applies to the service of the prescribed documents, Section 21 and 8 notices, and any other documents which any legislation requires to be ‘given’ or ‘served’. The court rejected the argument that prescribed documents fall outside Section 7's remit merely because the legislation does not explicitly authorise service by post.
Tenancy agreement’s service clause encompasses prescribed documents
The court also interpreted the tenancy agreement’s service clause as encompassing the prescribed documents. The Judge reasoned that the term "notice" was not defined narrowly or capitalised, and the phrase "or in connection with" suggested a broad interpretation, capturing documents required for compliance with statutory tenancy obligations.
What does this mean?
If landlords can show that a document was correctly addressed, pre-paid and sent, then the tenants will have to prove that the document was not received. A bare denial will not suffice. Presumably, tenants will have to give evidence that, for example, there was a problem with the postal service at the time the documents were sent.
Broadly drafted service clauses in tenancy agreements may encompass prescribed documents, reducing the evidential burden on landlords to prove actual receipt.
Take note that this decision is not the final word on the matter. A Court of Appeal hearing took place on 3 December 2024, and landlords will hope that the lower court appeal decision is upheld.
