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Service of statutory notices

Construction iStock 000002149516XSmall 146x219Are the prescribed methods of service of statutory notices exhaustive? Brendon Lee considers the key issues.

Most statutory instruments regulating the built and natural environment include prescriptive provisions listing the effective methods of service of notices and other documents required or authorised by such instruments. Common examples include the Planning Acts, the Highways Act and the Environmental Protection Act together with the general service provisions for local authorities in the Local Government Act 1972.

But are the listed methods of service exhaustive or are alternative methods lawfully possible? The Court of Appeal’s recent decision in Knight v Goulandris [2018] EWCA Civ 237 provides guidance on the issues to be considered when interpreting and applying such statutory provisions.

Common law service vs statutory service

It is important to first appreciate the difference between the burden of proof for effecting service of documents at common law and that pursuant to a statutorily prescribed method of service.

As noted in the Knight case, service at common law importantly requires the receipt of the document by the receiving party. Moreover, the burden of proof is on the serving party to establish such receipt of the document in a legible form.

Conversely, if a prescribed method is used by the serving party then receipt will not need to be established by such party. That is, there will be good service of the document for the purposes of the relevant statute even if the intended recipient either refuses to accept or never in fact receives the documents. This is particularly important when the statute enables effective service where the receiving party’s identity and/or whereabouts are not known. A caveat to a provision permitting service by post is section 7 of the Interpretations Act 1978. Provided there is no contrary statutory intention, this section makes the delivery of documents ‘in the ordinary course of post’, as opposed to its sending, the point in time when service is deemed effected (unless the receiving party proves to the contrary). 

Exhaustive interpretation?

Lord Justice Patten in the Knight case reiterated the well-established interpretation rule on the use of ‘shall’ and ‘may’ in statutory instruments such as those relating to the service of notices and other documents. That is, unless there is a significant contra-indication in the language of the relevant provisions then:

  • shall’ means the provisions are compulsory and must be complied with; and
  • may’ means the provisions are permissive only and discretionary.

The Knight case related to the interpretation of section 15 of the Party Walls etc Act 1996 (PWA 1996), and in particular whether and when service was effected so as to trigger the time-limited appeal rights to an award made by a jointly appointed third surveyor. Service had been effected by email from the third surveyor to the parties’ appointed surveyors who then further emailed the actual parties. Receipt of the second email by the appealing party was not disputed nor that it was received by a method of service outside that listed in section 15. The problem being that if service was lawfully effected then the appeal would have been filed out of time.

Section 15 sets out the statutory provisions for the service of documents required or authorised under the PWA 1996. It contains similar provisions to those generally found including the common statutory instruments mentioned above, whereby providing as follows:

“(1)        A notice or other document required or authorised to be served under this Act may be served on a person—

(a)          by delivering it to him in person;

(b)          by sending it by post to him at his usual or last-known residence or place of business in the United Kingdom; or

(c)           in the case of a body corporate, by delivering it to the secretary or clerk of the body corporate at its registered or principal office or sending it by post to the secretary or clerk of that body corporate at that office.

(1A)       A notice or other document required or authorised to be served under this Act may also be served on a person (“the recipient”) by means of an electronic communication, but only if—

(a)          the recipient has stated a willingness to receive the notice or document by means of an electronic communication,

(b)          the statement has not been withdrawn, and

(c)           the notice or document was transmitted to an electronic address specified by the recipient.  …”.

As underlined above, the section is drafted using the term ‘may’ in reference to the listed methods of service. The question for the court was whether, in reading the section as a whole, was there any significant contra-indication to a permissive construction on the use of the word ‘may’ so as to make the listed methods of service compulsory and exhaustive.

Lord Justice Patten found some attraction in the proposition that ‘may’ is explicable by reference to the choice of method of service provided by the section as opposed to permitting further unspecified methods that might satisfy the common law requirement of receipt. But ultimately, he found that such proposition was not enough to overcome the well-established statutory meaning of ‘may’ and the previous general rejection of an exhaustive interpretation by the Court of Appeal on a similar statutory service provision (ie. under the Landlord and Tenant Act 1927).

Accordingly, it was found by the plurality of the Court of Appeal in the Knight case that section 15’s listed methods of service were passive only, and not an exhaustive list, and as such a serving party could serve the documents under the common law (subject to the added burden of proof on receipt).

Lessons

Care should be taken by a serving party when assessing the options (and required proof) for service of a notice or other document authorised by a statutory instrument. Conversely, a receiving party will need to consider whether a notice or other document has been validly served.  

Provided there is no significant contra-indication in the statutory provisions, ‘shall’ will mean the statutory service provisions are compulsive and exhaustive. ‘May’ will mean they are passive and alternative methods of service are permissible such at common law.

Brendon Lee is a solicitor at Buckles Solicitors. He can be contacted on 01733 888920 or This email address is being protected from spambots. You need JavaScript enabled to view it..

 

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