Calladine -Smith v Saveorder Ltd [2011] EWHC 2501 (Ch) (05 July 2011)

Calladine -Smith v Saveorder Ltd [2011] EWHC 2501 (Ch) (05 July 2011)

Where a statute requires service of a notice by post and s.7 of the Interpretation Act 1978 applies, the presumption of service can be rebutted by the addressee proving on the balance of probabilities that the notice was not received; it is not necessary to provide positive evidence as to what happened to the letter beyond non-receipt.

Citation
[2011] EWHC 2501 (Ch)
Parties
Claimant: Calladine-Smith; Respondent: Saveorder Ltd
Jurisdiction
England and Wales
Judgment Date
05 July 2011
Procedural Posture
Appeal / Judgment on Appeal From County Court
Outcome
Appeal allowed
Legal Topics
Service of Notices, Interpretation Act 1978 S.7, Leasehold Reform (housing and Urban Development) Act 1993, Burden of Proof, Deemed Service, Counter Notice Under S.45
Property Law Landlord and Tenant Law Statutory Interpretation Service of Notices Interpretation Act 1978 S.7 Leasehold Reform (housing and Urban Development) Act 1993 Burden of Proof Deemed Service +1 more

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Parties

Calladine-Smith

Claimant

Saveorder Ltd

Respondent

Procedural Posture

Appeal / Judgment on Appeal From County Court

Legal Issues

  1. 1 Whether non-receipt of a counter-notice by the tenant is sufficient to rebut the presumption of service under s.7 Interpretation Act 1978.
  2. 2 Whether the burden on the addressee is only to prove non-receipt on the balance of probabilities or to provide positive evidence as to what happened to the letter.

Ratio Decidendi

Where a statute requires service of a notice by post and s.7 of the Interpretation Act 1978 applies, the presumption of service can be rebutted by the addressee proving on the balance of probabilities that the notice was not received; it is not necessary to provide positive evidence as to what happened to the letter beyond non-receipt.

Court Disposition

Appeal allowed

Orders

  • It is declared that the counter-notice was not served on the claimant.
  • The case falls within s.49 of the Leasehold Reform (Housing and Urban Development) Act 1993 and the agreed order under that section is to be made.