‘Reasonable recipient’ test can assist with mistakes in Section 8 Notices under Housing Act 1988

5th March 2020

A recent Court of Appeal case will be welcomed by landlords.  Housing Management & Litigation specialists Karl Anders and Deborah Brown explain that Pease v Carter [1] confirms that the ‘reasonable recipient’ test can be used to overcome some errors in Section 8 notices under the Housing Act 1988 (HA 1988).

Strict approach v ‘reasonable recipient’

In the leading case of Mannai Investment v Eagle Star [2] in 1997, Lord Hoffmann famously said: “if the [termination] clause had said that the notice had to be on blue paper, it would have been no good serving a notice on pink paper, however clear it might have been that the tenant wanted to terminate.”  In doing so he vividly articulated the basic rule that strict compliance with contractual or statutory provisions or requirements for is necessary for any notice to be effective.

However, to mitigate the harshness of that rule, the decision in Mannai went on to provide that minor defects would not necessarily invalidate a notice in certain circumstances if the reasonable recipient, with knowledge of the factual and contextual background, would not be perplexed by the error and would nevertheless understand what the notice was intended to convey.

Why is Pease v Carter of interest?

This ‘reasonable recipient’ test could assist a landlord.  However, it was not until the recent 2020 case of Pease v Carter that the Court of Appeal confirmed that it could apply to save a statutory possession notice served under section 8 of the HA 1988.

Section 8 HA 1988 requires a landlord wishing to recover possession of premises to give to the tenant notice that possession proceedings may begin on a date not earlier than the expiry of a prescribed period  from the date of service of the notice.  The case concerned a section 8 notice dated and served on 7 November 2018 which stated that court proceedings would not begin until after “26 November 2017”.

What did the Court of Appeal decide?

The judge in the County Court and the Court of Appeal both held that “2017” was an obvious typographical error, and should have read “2018”.

However, the County Court judge found that, because section 8 HA 1988 was clear and precise in its requirement for a possession notice to specify a date (in the case of a non-payment breach) of not earlier than the expiry of two weeks after the date of service, the strict approach should be taken and the reasonable recipient test did not apply.  He therefore decided that the notice was invalid.

The Court of Appeal disagreed.  It decided:

• Statutory notices are to be interpreted in accordance with the Mannai reasonable recipient test.
• If a reasonable recipient would appreciate that the notice contained an error and would understand what meaning the notice was intended to convey, then the notice is to be interpreted in accordance with that intention.
• The reasonable recipient test involves knowledge of the factual and contextual background. Therefore, covering letters can be taken into account when determining how the reasonable recipient would understand a notice.
• It remains necessary to consider whether, so interpreted, the notice complies with relevant statutory requirements. This involves consideration of the purpose of those statutory requirements.
• If a notice, properly interpreted in this way, does not precisely comply with statutory requirements but nevertheless fulfils the statutory purpose, it may be possible for a court to conclude that the notice is substantially to the same effect as a prescribed form, and therefore to conclude that the notice is valid.
• That may be the case even where an error relates to information inserted into or omitted from a form and not to wording used instead of prescribed language.

In this case, because the typographical error was clear and the overall context confirmed that the reasonable recipient would have appreciated that the notice intended to give at least two weeks’ warning of the commencement of possession proceedings, the notice was held to be valid.

WM comment

This decision will be welcomed by landlords. It provides some scope for persuading a court to find that a notice containing an error may nevertheless be relied upon to found possession proceedings (rather than dismissing the possession claim and forcing the landlord to start the process again from scratch).

However, Pease v Carter does not give landlords and their agents or legal representatives carte blanche to serve notices without due care and attention.  Whether the reasonable recipient test will trump the strict approach to interpretation and validity of a HA 1988 notice (or to any other statutory or contractual notice) will turn on the facts of each case.  The nature of the mistake, the factual and contextual background and, in the case of statutory notices, whether or not the statutory purpose is achieved despite any defect, could all affect the outcome.

As such, a good tip, when it comes to the service of any legal notice, is to remember the mantra: who, when and how?  If a party is considering serving a notice, it should first ascertain exactly:

Who is required to give notice and on whom the notice should be served. (Consider the party/counter-party itself? Legal representatives? Other agents? Have there been any assignments, novations or variations which change the position? What are the current names and addresses/contract arrangements for the relevant parties/agents?)

When the notice should be served, including whether there are any long-stop dates for service or for completion of any other conditional/procedural steps.  It is also important to bear in mind, when calculating dates, that there may be different dates to ascertain. For example, depending on the nature and wording of the notice clause, you may need to know the date on which a notice actually has to take effect; the date by which it has to be served on (i.e. received by) the receiving party; and/or the date by which it has to be issued.  All of those dates can be influenced by other factors (such as the required method of valid service; how long that will take; whether the lease/contract designates when service will take place or whether the lease/contract relies on external deeming provisions; whether there are any weekends/bank holidays to take into account and/or whether only working/business days count; and so on.

The how covers the content and form of the notice, including any strict procedural requirements and/or statutory purposes; and the fact that service must be effected in accordance with any contractually specified method.

If errors are made, this can result in wasted time, cost and, in possession cases, potentially abortive court proceedings. The best advice is therefore to instruct specialist legal representatives to reduce the chance of problems arising.

[1] [2020] EWCA Civ 175

[2] Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749