Is it right that a minor error in a notice should invalidate it, even if a reasonable recipient, by using common sense, is easily able to interpret the intended meaning? This was the question posed in an appeal court hearing in and eviction case, Pease v Carter March 2020.
These guidelines apply primarily to England. Other regions and jurisdictions are similar but there may be important differences and this is becoming increasingly so in the UK with devolution. This is not a definitive interpretation of the law, every case is different and only a court can decide. Do not act on or refrain from acting on this information without seeking expert advice.
The case revolves around a notice service by a landlord on his tenant under section 8 of the Housing Act 1988. The notice stated that court proceeding were to begin after 26th November 2017, when in fact it should have read after 20th November 2018 – the landlord simply had the wrong year.
At the original possession hearing the Judge held that this was an obvious typographical error, and that a reasonable recipient of the notice would have realised that the intended date was 26 November 2018. However, the judge cited another case, Fernandez v McDonald 2003, which implied that the “reasonable recipient test” did not apply to section 8 notices and therefore the notice was invalid.
The landlord appealed and the Court of Appeal held that when considering unilateral notices the starting point is the 1997 Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd test case, a well-established test of the “the reasonable recipient”.
The Appeal Court held that:
A statutory notice is to be interpreted in accordance with Mannai v Eagle Star, that is to say, as it would be understood by a reasonable recipient reading it in context. 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.
It remains necessary to consider whether, so interpreted, the notice complies with the relevant statutory requirements. This involves considering the purpose of those requirements. 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.
It therefore followed, according to the Appeal Court, that the “reasonable recipient test” does in fact apply to section 8 notices and that Fernandez v McDonald is not the authority where the statutory requirements are clear and precise, are not difficult for the party serving the notice to comply with, and where it does not have particularly serious consequences for that party if not complied with.
It was held that a reasonable recipient in this case would conclude that the person who typed the notice had mistakenly typed a “7” rather than an “8”. Having mentally corrected this error, the reasonable recipient would conclude that 26 November 2018 made sense as being the intended date and would therefore have no reason to think that the day or month were also in error.
Furthermore, in this case the landlord had included with the notice a covering letter which stated “Proceedings will not be issued before 26 November 2018 but will be issued within 12 months of service of the notice.” This the judge said should have dispelled any doubt in the tenants’ minds as to the intended date.
Key points to take away from this case:
- Pay particular attention to the details of your legal notices, dates and statutory wording
- It’s a good idea to include a covering letter with notices spelling out your intentions
- The “reasonable recipient test” on the reading of notices “in context” does apply to tenancy notices.
- However, notices must substantially if not exactly meet statutory requirements – failure to meet the precise statutory requirements will not necessarily invalidate the notice if it is ‘substantially to the same effect’ and fulfils the statutory purpose, but it’s better to get it right.