Validity of unilateral notices – errors – the reasonable recipient –statutory purpose
When does an error invalidate a notice? In this case the Appellant Landlord had served a notice under section 8 of the Housing Act 1988 on the Respondents Tenants on 7 November 2018. The notice stated that the court proceedings would not begin until after “26 November 2017”. The Judge held that this was an obvious typographical error, and that the reasonable recipient of the notices would have realised that the intended date was 26 November 2018. He nevertheless held that the error in the date meant that the notice was invalid as the reasonable recipient test did not apply to section 8 notices, citing Fernandez v McDonald  EWCA Civ 1219. The Court of Appeal held that the notice was valid.
The Court of Appeal’s reasoning
The Court of Appeal held that when considering unilateral notices the starting point is Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd  A.C. 749 and the now well-established test of the “the reasonable recipient”. The Court held (at ) that the conclusions to be drawn from the authorities are that:
A statutory notice is to be interpreted in accordance with Mannai v Eagle, 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 follows that the reasonable recipient test does apply to section 8 notices and Fernandez v McDonald is not authority for the proposition that this approach is inapplicable where the statutory requirements are clear and precise, are not difficult for the party serving the notice to comply with and do not have particularly serious consequences for that party if not complied with.
LJ held that the reasonable recipient would conclude that the person who typed the notice had mistakenly typed “7” rather than “8”. Having mentally corrected that error, the reasonable recipient would conclude that 26 November 2018 made sense as being the intended date and would have no reason to think that the day or month were erroneous.
Further, if there was any doubt about this conclusion, it would be dispelled by the covering letter which said “Proceedings will not be issued before 26 November 2018 but will be issued within 12 months of service of the notice.”
The key points to take away from this case are:
- The Mannai v Eagle test of the reasonable recipient reading the notice in context (including any covering letter) applies to unilateral notices;
- The notice must however meet statutory requirements and the purpose of those requirements must therefore be considered;
- The failure to meet the precise statutory requirements will not invalidate the notice if it is ‘substantially to the same effect’ and fulfils the statutory purpose.