Service of notices: a reminder

2 June, 2017

 

The Court of Appeal decision in Grimes v Essex Farmers & Union Hunt Trustees is a useful reminder of potential traps for the unwary when it comes to serving notices.  The case turned on whether service by a landlord of a notice to quit was valid.  The notice was served on the address stated in the tenancy agreement as the tenant’s address but in circumstances where the landlord knew the tenant’s address had changed.  The tenancy agreement provided that either party may serve notice on the address given in the particulars or such other address as has previously been notified in writing.  The landlord assumed this to mean service at the either was fine.  Chelmsford County Court agreed.  The Court of Appeal took a different view however.

 

While cases like this ultimately turn on the meaning of words in a specific agreement a few general observations can be made:

 

  • It is almost always the case the intention of a draftsman is not to enable a party to serve notice to terminate to an address the server knew was no longer correct.  Before concluding such an interpretation is correct do take a step back and ask the question whether logically this can be right.
  • If faced with an ambiguous service clause why take the chance on what the draftsman meant?  To quote Robert de Niro’s character in the film Ronin, “whenever there is any doubt, there is no doubt”.  While Robert de Niro wasn’t concerned with serving notices the point here is a simple one – eliminate the risk that service may be invalid or challenged.  The simplest way of achieving this is to serve at as many addresses as practical.
  • The consequence of the landlord’s error in this case was a liability in damages for unlawfully dispossessing the tenant of its land and the costs of the proceedings (given the case went to a trial held over 3 days followed by a full hearing in the Court of Appeal at which both sides were represented by a QC those costs will inevitably have been eye watering). 
  • There will of course be cases where the server of a notice tries to be cute to avoid (for example) a counter notice being served and so looks to serve at an address least likely to elicit a response.  There is nothing wrong with that but before identifying such an address it is important to take a step back to ensure that the address for service is consistent with the relevant contractual and/or statutory framework. 
  • If, following the stocktake, a decision is made not to plaster a notice to as many addresses as possible, do ensure that decision is made in full knowledge of the consequences of getting the address wrong, whether that be exposure to costs, damages and/or litigation risk.  Having identified the risks, ask whether they outweigh the benefit.  It will be the exception rather than the rule that the benefits are outweighed by the risks.