JUDGMENT
UKI (Kingsway) Limited (Respondent) v
Westminster City Council (Appellant)
before
Lady Hale, President
Lord Kerr
Lord Carnwath
Lord Lloyd-Jones
Lord Kitchin
JUDGMENT GIVEN ON
17 December 2018
Heard on 6 November 2018
Appellant Respondent
Sebastian Kokelaar Daniel Kolinsky QC
Luke Wilcox
(Instructed by Tri
–
Borough Shared Legal
Services)
(Instructed by River Island
Clothing Co Ltd
)
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LORD CARNWATH: (with whom Lady Hale, Lord Kerr, Lord Lloyd-Jones
and Lord Kitchin agree)
1. This appeal raises a short issue as to the requirements for valid “service” of
a completion notice so as to bring a newly completed building within liability for
non-domestic rates.
The statutory framework
2. Liability for non-domestic rates depends on a property being entered as a
hereditament in the rating list. The completion notice procedure, under section 46A
of and Schedule 4A to the Local Government Finance Act 1988, as inserted, (“the
Act”) provides a mechanism whereby a new building, which has not yet been
occupied, may be brought into the rating list. Subject to any appeal, a validly served
completion notice has the effect that the building to which it relates is deemed to
have been completed on the date specified in the notice. It is then shown in the rating
list as a separate hereditament (or hereditaments), and is valued as if it were
complete (section 46A(2)). Once the building is so shown in the rating list, its owner
(or its occupier if it becomes occupied) becomes liable to an assessment for nondomestic rates.
3. The procedure is set out in Schedule 4A. Paragraph 1(1) of Schedule 4A
provides that, if it comes to the notice of a billing authority that the work remaining
to be done on a new building in its area can reasonably be expected to be completed
within three months, it shall (unless the valuation officer directs otherwise) “serve
… on the owner of the building” a notice, known as a “completion notice”.
Paragraph 1(2) contains a similar provision in respect of a new building that has
been completed.
4. The completion notice must (a) specify the building to which it relates and
(b) state the day which the billing authority proposes as the completion day (para
2(1)). In the case of a building which has yet to be completed, the completion day
proposed should be:
“[s]uch day, not later than three months from and including the
day on which the notice is served, as the authority considers is
a day by which the building can reasonably be expected to be
completed.” (para 2(2))
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In the case of a building which appears to have been completed, it should be “the
day on which the notice is served” (para 2(3)).
5. A person on whom the completion notice is served may appeal to the
Valuation Tribunal on the ground that the relevant building has not been or cannot
reasonably be expected to be completed by the day stated in the notice (para 4(1)).
Where an appeal is not withdrawn or dismissed, the completion day shall be “such
day as the tribunal shall determine” (para 4(2)). An appeal must be brought within
28 days “after the date on which the appellant received the completion notice …”
(Non-Domestic Rating (Alteration of Lists and Appeals) (England) Regulations
2009 (SI 2009/2268) regulation 19(1), made under paragraph 8(2)(a) of Schedule 11
to the Act).
6. Paragraph 8, which deals with service, provides:
“Without prejudice to any other mode of service, a completion
notice may be served on a person –
(a) by sending it in a prepaid registered letter, or by
the recorded delivery service, addressed to that person
at his usual or last known place of abode or, in a case
where an address for service has been given by that
person, at that address;
(b) in the case of an incorporated company or body,
by delivering it to the secretary or clerk of the company
or body at their registered or principal office or sending
it in a prepaid registered letter or by the recorded
delivery service addressed to the secretary or clerk of
the company or body at that office; or
(c) where the name or address of that person cannot
be ascertained after reasonable inquiry, by addressing it
to him by the description of ‘owner’ of the building
(describing it) to which the notice relates and by affixing
it to some conspicuous part of the building.”
7. General provision for the service of statutory notices by local authorities is
also made by section 233 of the Local Government Act 1972. In particular it
provides:
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“(7) If the name or address of any owner, lessee or occupier
of land to or on whom any document mentioned in subsection
(1) above is to be given or served cannot after reasonable
inquiry be ascertained, the document may be given or served
either by leaving it in the hands of a person who is or appears
to be resident or employed on the land or by leaving it
conspicuously affixed to some building or object on the land.”
8. As to the date of service, under such statutory provisions, section 7 of the
Interpretation Act 1978 provides:
“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)
then, unless the contrary intention appears, the service is
deemed to be effected by properly addressing, pre-paying and
posting a letter containing the document and, unless the
contrary is proved, to have been effected at the time at which
the letter would be delivered in the ordinary course of post.”
Factual background
9. In January 2009 the respondent (“UKI”) began the redevelopment of a
building at 1 Kingsway to provide 130,000 sq ft of office space. In February 2012
the appellant council informed UKI’s agents that it intended to serve a completion
notice specifying a completion date of 1 June 2012. It asked the agents to confirm
the identity of the owner of the building, but the agents declined to do so without
obtaining instructions from their client which were not forthcoming. At that time the
building was managed by Eco FM (“Eco”) under a contract with UKI, but Eco had
no authority to accept service of documents on its behalf.
10. On 5 March 2012, the council delivered a completion notice by hand to the
building, specifying 1 June 2012 as the completion date. The notice was addressed
to the “Owner, 1 Kingsway, London WC2B 6AN”. It was given to a receptionist
employed by Eco, who scanned and emailed a copy of the notice to UKI. It was
received by UKI not later than 12 March 2012.
11. On 29 March 2012 an appeal was lodged by UKI’s agents against the
completion notice, purportedly “on behalf of Eco”, on the grounds (inter alia) that
the service of the notice was invalid. On 7 May 2013, the premises were brought
into the list with a rateable value of £2,750,000 with effect (as subsequently
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corrected) from 1 June 2012. This was met by a proposal on behalf of UKI that the
entry be deleted. The proposal was not accepted by the valuation officer and was
transmitted to the Valuation Tribunal for determination on appeal.
12. The appeals against both the completion notice and the inclusion of the
premises in the list were consolidated and heard by the Valuation Tribunal
(President Graham Zellick QC), which allowed the appeal. That decision was
reversed by the Upper Tribunal (Deputy President Martin Rodger QC) [2015] RA
433 but re-instated by the Court of Appeal (Gloster, Macur, and King LJJ) [2017]
PTSR 1606.
13. The Court of Appeal (para 37) recorded as common ground:
i) that the state of the premises at the relevant time was such that, but for
the deeming effect of a completion notice, the premises could not have been
entered in the rating list;
ii) that the name and address of UKI as owner of the building could have
been ascertained by the council by reasonable inquiry, notwithstanding the
fact that UKI had instructed the agents not to divulge its name. Accordingly,
the council could not rely on the means of service on the premises permitted
by paragraph 8(c) of Schedule 4A to the Act, or section 233(7) of the Local
Government Act 1972.
14. The issue for this court, as identified in the agreed statement of facts and
issues, is whether the completion notice was validly served on the date that it was
received by UKI, in circumstances where:
i) it was not delivered directly to UKI by the council, but passed through
the hands of the receptionist employed by Eco, who was not authorised for
that purpose by either party;
ii) it was received by UKI in electronic rather than paper form.
Service – the authorities
15. It is common ground that, by virtue of the opening words of paragraph 8 of
Schedule 4A to the Act, the three specific methods there set out do not exclude other
methods of service available under the general law. There is no serious dispute as to
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what that entails. In Sun Alliance and London Assurance Co Ltd v Hayman [1975]
1 WLR 177, 185 CA (a case under the Landlord and Tenant Act 1954), Lord Salmon
said:
“According to the ordinary and natural use of English words,
giving a notice means causing a notice to be received.
Therefore, any requirement in a statute or a contract for the
giving of a notice can be complied with only by causing the
notice to be actually received – unless the context or some
statutory or contractual provision otherwise provides …”
(No distinction is drawn in the cases between “serving” and “giving” a notice: see
Kinch v Bullard [1999] 1 WLR 423, 426G.) To similar effect in Tadema Holdings
Ltd v Ferguson (1999) 32 HLR 866, 873, Peter Gibson LJ said (in a case relating to
service of a notice under the Housing Act 1988):
“‘Serve’ is an ordinary English word connoting the delivery of
a document to a particular person.”
16. Specific statutory provisions such as paragraph 8 are designed, not to exclude
other methods, but rather to protect the server from the risk of non-delivery. As was
said by Slade LJ in Galinski v McHugh (1988) 57 P & CR 359 (in relation to a
similar service provision in the Landlord and Tenant Act 1927 section 23(1)):
“This is a subsection appearing in an Act which … contains a
number of provisions requiring the giving of notice by one
person to another and correspondingly entitling that other
person to receive it. In our judgment, the object of its inclusion
… is not to protect the person upon whom the right to receive
the notice is conferred by other statutory provisions. On the
contrary, section 23(1) is intended to assist the person who is
obliged to serve the notice, by offering him choices of mode of
service which will be deemed to be valid service, even if in the
event the intended recipient does not in fact receive it.” (p 365,
original emphasis)
Indirect service
17. More controversial, and relevant in the present case, is whether it matters that
the notice reaches the intended recipient, not directly or through an agent authorised
for that purpose, but by the action of a third party.
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18. On this point we were referred to an observation (obiter) of Sir Robert
Megarry V-C in Townsends Carriers Ltd v Pfizer Ltd (1977) 33 P & CR 361. That
concerned a break option in a lease exercisable by either party upon the giving of
written notice to the other. The premises were used by U Ltd, an associated company
of the defendant, and correspondence relating to rent demands and other matters had
been between that company and WT Ltd, an associated company of the claimant. It
was held that a notice given by U Ltd to WT Ltd was valid, on the basis of an
assumed general agency arising from past conduct, even though neither company
was expressly authorised for that purpose.
19. The Vice-Chancellor also noted but rejected an argument that the relevant
clause required the tenant to “give” notice to the landlord, and that, although the
landlord had ultimately received the notice, “no notice had ever been given to the
landlord as such”. He said:
“… I do not think that a requirement to ‘give’ notice is one that
excludes the indirect giving of notice. The question is whether
the notice has been given, not whether it has been given
directly. If the notice emanates from the giver and reaches the
ultimate recipient, I do not think that it matters if it has passed
through more hands than one in transit.” (p 366)
Electronic communication
20. The other main issue in this appeal is whether it matters that the notice was
received by UKI in electronic form.
21. We were referred to no direct authority on service of a scanned copy of a
notice by email. However, Mr Kokelaar for the council relied on two earlier
authorities in which delivery of notices by fax was accepted as valid. In Hastie &
Jenkerson v McMahon [1990] 1 WLR 1575 the Court of Appeal accepted that
service of a list of documents by fax was valid service for the purposes of a consent
order in civil proceedings under the Rules of the Supreme Court. In the leading
judgment, Woolf LJ said:
“… are there any legal reasons why advantage should not be
taken of the progress in technology which fax represents to
enable documents to be served by fax, assuming that this is not
contrary to any of the Rules of the Supreme Court? The purpose
of serving a document is to ensure that its contents are available
to the recipient and whether the document is served in the
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conventional way or by fax the result is exactly the same.
[Counsel] on behalf of the defendant submits that what is
transmitted by fax is not the document but an electronic
message. However, this submission fails to distinguish
between the method of transmission and the result of the
transmission by fax. What is produced by the transmission of
the message by fax, admittedly using the recipient’s machine
and paper, is the document which the other party intended
should be served. … What is required is that a legible copy of
the document should be in the possession of the party to be
served. This fax achieves. I therefore conclude that service by
fax can be good service subject to any requirement of the order
requiring service of a particular document and any requirement
of the Rules of the Supreme Court.” (pp 1579-1580).
Agreeing, Glidewell LJ added:
“I emphasise that if a document is served by a means for which
neither the rule nor statute provides, there will only be good
service if it be proved that the document, in a complete and
legible state, has indeed been received by the intended
recipient. I realise that transmission of documents by fax is a
relatively recent development. If, in a particular case, what
emerges from the recipient’s fax machine is not, or may not be,
complete or is not wholly legible, a court will be justified in
concluding that the document has not been properly served.” (p
1585)
The third member of the court Lloyd LJ, while not dissenting, expressed some
misgivings. He would have preferred to wait for consideration of the question by the
Supreme Court Procedure Committee. As he said, while it is “easy enough for courts
to give a benevolent construction to the rules … to take account of some new
contrivance, such as the telex machine or the fax”, it is not so easy to see “what the
repercussions will be, and what other consequential amendments to the rules may
be required” (p 1586).
22. The other authority to which we were referred on this point was PNC Telecom
plc v Thomas [2003] BCC 202. Sir Andrew Morritt V-C held that a letter sent by fax
constituted a validly “deposited” notice to convene an extraordinary general meeting
under section 368 of the Companies Act 1985. The Vice-Chancellor noted that by
that time the Electronic Communications Act 2000 (“2000 Act”) enabled specific
modifications to be made to authorise communication by electronic means under
existing statutes, including the Companies Act. Some such modifications had been
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made, but not in respect of section 368. Counsel before him had been unable to
indicate the basis on which some of these provisions had been singled out for
amendment but others not (para 14).
23. In any event, he did not think that the 2000 Act could be regarded as designed
to introduce fax as a permitted means of communication “for that had been done on
a case-by-case basis over the preceding 30 years or so” (para 16). Among other
authorities he referred to the words of Woolf LJ set out above. He also noted with
agreement observations of Laddie J in Inland Revenue Comrs v Conbeer [1996]
BCC 189, on the potential advantages of delivery by fax in terms of reliability and
speed. He saw no reason why fax transmission should not give rise to a valid
“deposit” under section 368, in circumstances where no-one had been misled or
disadvantaged, and the “ultimate result is exactly the same as if it had been
transmitted in person or by post” (para 22).
24. The principal dispute on this part of the case is whether these authorities can
be relied on as extending to a copy sent by email, having regard in particular to the
provisions made in that respect by the 2000 Act. Section 8 empowers Ministers to
make regulations to modify primary and secondary legislation for the purpose of
authorising or facilitating the use of electronic communications. Electronic
communication is widely defined as including any form of communication
transmitted “while in an electronic form” (section 15(1)). In respect of non-domestic
rates (and council tax) specific regulations have been made for the use of electronic
billing in certain circumstances, and subject to particular restrictions: see the
Council Tax and Non-Domestic Rating (Electronic Communications) (England)
Order 2003 (SI 2003/2604). Thus for example provision is made for the service of
certain forms of notice to be given to a person by sending the notice “by electronic
communication to such address as may be notified by that person for that purpose”
(see article 4). No such modification has been made in respect of completion notices.
The judgments below
25. In the Valuation Tribunal (at para 38), the President thought that, even
accepting the formulation by Peter Gibson LJ in the Tadema Holdings case (para 15
above), there had been no delivery of the actual notice to the owner. In his view
intended recipients were entitled to receive the original of any formal notice, in the
absence of an expression of willingness to accept electronic service.
26. The Upper Tribunal took a different view. The Deputy President found it
difficult to accept that:
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“… in a case where the vital information has successfully been
imparted to the person who needs to receive it, and that person
has acted on it by exercising the right of appeal, the need for
discipline and regularity in the exercise of the statutory power
should be sufficiently powerful considerations to require that
the recipient’s liability be determined on the basis that the
information had never been received.” (para 46)
Unlike the President he did not see that this approach offended any public interest
consideration. Referring to the dicta in the Townsends Carriers case, he said:
“If the mode of service selected by the billing authority
achieves its objective I find it very difficult to see why the
public interest or the interests of justice to which the President
referred should render service legally effective in some cases
but ineffective in others. In my judgment a document which
arrives in the hands of the intended recipient by an unorthodox
route has still been served …” (para 47)
In sending on the notice to UKI, the receptionist had been doing “no more than one
would expect of a responsible employee of a company engaged to manage the
building” (para 48). He dealt more shortly with the issue of electronic
communication, saying simply that, there being no dispute that the electronic copy
had been received, he could see “no justification for distinguishing between notices
in different forms” (para 49).
27. The Court of Appeal’s conclusion turned principally on what they understood
to be the “natural or normal usage” of the statutory language. As Gloster LJ said;
“The relevant statutory requirements of section 46A of and
paragraph 1 of Schedule 4A to the 1988 Act for present
purposes are: (a) that ‘the billing authority’ (b) ‘shall serve’ the
required completion notice (c) ‘on the owner of the building’.
For the billing authority merely to leave the notice with a third
party, not authorised to accept service of the notice on the
owner’s behalf, or, indeed, to effect service on the authority’s
behalf, in the hope, or with the intention, that the notice will
somehow be brought to the attention of the owner, and where
a copy of the notice or its contents are in fact subsequently
communicated to the owner by the third party, does not, on any
natural or normal usage of the words ‘serve’ and ‘on’,
constitute ‘service’ on ‘the owner’ ‘by the authority’. In other
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words, the concept of ‘service on the owner by the authority’
in paragraph 1 of Schedule 4A to the 1988 Act cannot be
construed as including effectively all methods of
communication or transmission, which ultimately result in the
information in the notice (or the notice itself) being brought to
the attention of, or delivered to, the owner, in circumstances
where the information in the document, or the document itself,
has been communicated to the owner by a third party who is
not authorised either to accept, or effect, service …” (para 44)
28. She also attached weight to the statutory context:
“… it is a taxing statute which imposes rating liability on a
property owner on an assumed basis. The timetable for a
taxpayer to raise an appeal against the completion notice is
strict and is based upon the date upon which it received the
completion notice. In those circumstances there are obvious
policy considerations which point to a need for certainty and
precision as to the date of service …” (para 49)
29. On the question of “indirect service” she did not think that the observations
of Sir Robert Megarry V-C could be treated as of general application:
“It is clear from subsequent cases that Megarry V-C’s dictum
has not been generally applied to justify an expansion of the
concept of service to embrace all situations where ultimately
the person on whom the relevant notice or document ought to
be served has come to know of the contents of the notice,
irrespective of whether he or his authorised agent have actually
been served. Thus, for example, in Fagan v Knowsley
Metropolitan Borough Council (1985) 50 P & CR 363 this
court rejected the application of the dictum in circumstances
where what was relevant was the mandatory statutory code for
service under section 30 of the Compulsory Purchase Act 1965.
The fact that the service provisions were mandatory in that case
does not detract from UKI’s submission that what has to be
considered in each case is what are the necessary requirements
for service under the relevant statutory scheme.
Likewise, a number of cases have emphasised the wellestablished principle that service on a solicitor who does not
have authority to accept service of the particular notice on
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behalf of his client is not valid service on that party. … Glen
International Ltd v Triplerose Ltd [2007] L & TR 28; [2007]
EWCA Civ 388 … makes clear that the Townsends case can be
distinguished as being ‘a decision on the particular facts’ (see
para 22) rather than laying down any generally applicable
principle. In the Glen International Ltd, the Court of Appeal
did not go on to consider whether the solicitors had passed a
copy of the notice to their client. But it is implicit in that
judgment that onward transmission would not have rendered
ineffective service effective.” (paras 51-52)
On the issue of electronic communication, while inclining to a different view from
that of the Upper Tribunal, she preferred to leave the matter undetermined in the
absence of more detailed submissions on the statutory regime (para 54).
The submissions in this court
30. For the council, Mr Kokelaar adopts the reasoning of the Upper Tribunal, as
supported by the authorities to which I have referred. In summary, he submits, the
words “serve” and “service” in Schedule 4A should be given their ordinary meaning,
that is delivery of a document to a particular person. Under general principles, a
notice (under statute or contract) is regarded as having been served if it has been
received by the intended recipient. In this case the notice was received by UKI and
served its statutory purpose of communicating to UKI the completion date proposed
by the council, and it was acted upon by UKI. As in Townsends Carriers the fact
that it passed through the hands of the receptionist did not invalidate service.
Alternatively, the receptionist must be taken as having been impliedly authorised to
pass it on to UKI. In relation to service by email, the reasoning of the authorities on
service by fax is indistinguishable. There is nothing in Schedule 4A, or in the 2000
Act, to exclude service of a completion notice by electronic means, where the
ultimate result is exactly the same as if a hard copy had been transmitted in person
or by post.
31. For UKI Mr Kolinsky QC supports the reasoning of Gloster LJ in the Court
of Appeal. In particular he adopts her three-stage analysis of the relevant provision,
arguing that the council failed at the first stage, that is the requirement for service
on the owner by the billing authority. Whatever method is adopted, it must be the
authority itself (acting through its officers) which effects the service. Service
through a third party, which is neither the owner’s agent nor duly authorised to act
on the authority’s behalf, is not service on the owner by the authority.
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32. Further, Mr Kolinsky submits that the involvement of the Eco receptionist
broke the necessary chain of causation. Mr Kokelaar’s suggestion that the
receptionist had implied authority to act for the council was misplaced, having
regard to the detailed statutory scheme governing delegation of local authority
functions. It would have been different if for example the council had used a process
server under its contractual control to carry out personal service. Use of such a
method might be authorised as incidental to the authority’s functions under section
111(1) of the Local Government Act 1972, without involving any unlawful
delegation. He relies on statements by the Court of Appeal as to the permissible use
of contractors or agents under that section, in Crédit Suisse v Allerdale Borough
Council [1997] QB 306, 359G per Hobhouse LJ.
33. Mr Kolinsky also repeats Gloster LJ’s emphasis on the need for certainty in
a taxing statute. In that context he relies on paragraph 2(3) of Schedule 4A to the
Act where (in relation to a completed building) the authority is required to specify
the date of service as the date from which liability is to begin. There can be no such
certainty if the council has no control over the process by which the notice reaches
the recipient.
34. On the issue of electronic communication, he points to the fact that
ministerial intervention was considered necessary to authorise the use of such
communication in some aspects of the non-domestic rating scheme, while no such
intervention was made in respect of completion notices. This carefully drawn
scheme would be otiose if there existed some common law rule permitting the use
of electronic service as a generality. Further the limitation of electronic service to
cases where the ratepayer had assented by providing an address for electronic
service would make no sense if the authority were able to serve without the
ratepayer’s consent.
Discussion
35. The method of attempted service adopted by the council was far from ideal.
As already noted, the purpose of specific provisions such as paragraph 8 is to provide
reliable methods of service and to minimise the risk to the council of non-delivery.
Given that, as is now accepted, the name and address of the owner could have been
discovered by reasonable inquiry, it is not clear why this was not done. We have had
no satisfactory explanation for this failure, nor indeed for the failure to take
corrective action when the objection to service was raised. Nothing in this judgment
should be taken as detracting from the good sense of the President’s observation
(Valuation Tribunal, para 43):
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“In practice, billing authorities would be well advised to secure
the protection afforded by paragraph 8 and not serve outside
those provisions unless confident that the circumstances are
such that good service will be effected.”
However, the two legal issues on which the judges below disagreed are of some
general importance and merit consideration by this court. Hence the grant of
permission to appeal.
Indirect service
36. The difference between the Upper Tribunal and the Court of Appeal comes
down to a narrow point. The Upper Tribunal thought that, since the notice issued by
the council reached the hands of the intended recipient, it mattered not that the route
was “unorthodox”. Gloster LJ thought that this approach failed to give effect to the
concept of “service on the owner by the authority” (emphasis added). For my part I
would accept that the means by which the notice arrives at its destination is not
wholly immaterial. In itself the reference to the billing authority is simply to identify
the body responsible for service; it says nothing about how that is to be done. The
real issue, as I see it, adopting the words of Lord Salmon in the Sun Alliance case,
is whether the authority “caused” the notice to be received by UKI. In other words
there must be a sufficient causal connection between the authority’s actions and the
receipt of the notice by the recipient.
37. Mr Kolinsky appeared implicitly to accept that analysis, but he submitted that
the chain of causation was broken by the interposition of a third party in the form of
the Eco receptionist. He challenged Mr Kokelaar’s suggestion that the receptionist
was given implied authority to serve the notice, at least in any formal sense. To that
extent I would agree with him; but it is unnecessary and unrealistic in my view to
introduce concepts of agency or statutory delegation into this simple sequence of
events. As the Deputy President accepted, the Eco receptionist, on receiving from
the council officer a hand-delivered notice addressed to the “Owner”, did no more
than would reasonably be expected of a responsible employee in that position: that
is, pass on the notice to the person to whom it was addressed. It was the natural
consequence of the council’s actions.
38. Mr Kolinsky objected that the receptionist was not under the control of the
council, as would have been for example a process server acting under contract.
However, causation does not necessarily depend on control. Mr Kokelaar countered
with the example of a notice correctly addressed, but mistakenly delivered to a
neighbouring address and then passed on by the occupant to the intended recipient.
Like him I see no reason why that should not be treated as effective service under
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ordinary principles of causation, even though the friendly neighbour was not under
the control of either party.
39. This approach to indirect service is consistent with that of Sir Robert Megarry
V-C in the Townsends Carriers case. I would agree with Gloster LJ (see para 29
above) that his words cannot be read as intended to embrace “all situations” where
ultimately the intended recipient “has come to know of the contents of the notice”.
There needs to be actual receipt of the notice, and a sufficient causal link with the
actions of the council.
40. Of the cases to which she referred, Fagan v Knowsley Metropolitan Borough
Council provides no assistance, because, as she acknowledged, it was concerned
with a mandatory statutory code. More pertinent perhaps is her reference to cases
relating to service of notice on solicitors. As she says, service of a notice on a
solicitor who does not have his client’s authority to accept service of the particular
notice is not in itself valid service.
41. She cited Glen International which concerned service of a notice by the
landlord in relation to leasehold enfranchisement. It is true that, having found that
the tenant’s solicitor on whom the notice was served had no authority to accept it,
the court did not go on to inquire whether the notice was in fact passed on to the
tenant. It is also true, as Gloster LJ noted, that Townsends Carriers case was referred
to as a decision “on the particular facts”, but that seems to have been on the agency
issue. There is no indication that the case was used to support an argument based on
indirect service; nor indeed that there was any evidence that the solicitor had passed
on the actual notice, nor any reasonable expectation that he would do so. That
situation is readily distinguishable in my view from the purely mechanical role
played by the receptionist in this case.
42. A further argument against the Upper Tribunal’s approach was the potential
uncertainty it leaves as to the date of service. As Mr Kolinsky points out, it may be
important not only for both parties, but also for the valuation officer, to be able to
identify the date of service with precision. Thus, in respect of a building which
appears to have been completed, the date of service must be identified in the notice
(paragraph 2(3)), and, subject to appeal, is treated as the “completion day” so
triggering liability to rates. In respect of a building yet to be completed the proposed
completion day must be not later than three months “from and including” the date
of service (Schedule 4A, paragraph 2(2)).
43. The difficulty with this argument, in my view, is that some uncertainty in this
respect is inherent in the legislation, in which neither the methods of service, nor the
dates of service in different circumstances, are exhaustively defined. The simple
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answer for the authority may be that, where the date of service is critical, it is able
to choose a statutory method which eliminates or minimises the risk of the notice
being rendered invalid by failure to specify the correct date of service. If it chooses
a non-statutory method it must bear that risk. The risk of prejudice to the owner is
limited, since outside the statutory grounds service depends on actual receipt by the
intended recipient, and the time for appeal is also related to receipt.
Electronic communication
44. In spite of the misgivings expressed by Lloyd LJ in the Hastie case, it does
not appear that the reasoning of the majority has been questioned in any subsequent
cases, before or since the enactment of the 2000 Act. Notably it was applied in the
PNC Telecom case notwithstanding the recognition that modifications had been
made under the 2000 Act to other parts of the Companies Act 1985. Although those
cases were concerned specifically with fax transmission of a copy of the relevant
notice, no good reason has been suggested for distinguishing that from transmission
by email as in this case.
45. Given that this was the state of the general law immediately preceding the
enactment of the 2000 Act, Parliament must be taken to have legislated against that
background. Mr Kolinsky would need to point to some provision of that Act which
expressly or impliedly restricts the previous law, or overall inconsistency sufficient
to overcome the general presumption that Parliament does not intend to change the
common law (see Bennion on Statutory Interpretation sections 25.6, 25.8). In my
view he was unable to do so. Nor did he refer to any authority to support such a
submission. It is not enough that the new law may overlap in certain respects with
the general law. The purpose of the 2000 Act, as stated in its long title, was to make
provision “to facilitate the use of electronic communications …”. There is nothing
to indicate an intention to cut down the existing law.
46. Against the background of the detailed scheme established by or under the
2000 Act, it may seem anomalous that the same result may be achieved in some
cases by more informal means. However, the purpose of the Act and Orders made
under it is to provide a clear and certain basis for the routine use of such methods by
authorities. That purpose is not undermined by a conclusion that under general
principles, and on the particular facts of this case, the notice was successfully served.
Conclusion
47. For these reasons, in respectful disagreement with the Court of Appeal, I
would allow the appeal and restore the order of the Upper Tribunal.
