You just got served - Khan v D'Aubigny [2025] EWCA Civ 11

In the recent case of Khan v D'Aubigny, the Court of Appeal provided crucial clarification on the service of documents and the interpretation of what constitutes a "notice". This case is particularly significant as it addresses the nuances of serving documents under common law, contractual agreements, and the Interpretation Act 1978.

 

Background

The dispute arose when the landlords, seeking to obtain possession of a property under an assured shorthold tenancy, relied on a section 21 notice which the landlords served pursuant to the Housing Act 1988. While the tenant acknowledged receipt of the notice, they disputed having received essential documents such as the gas safety certificate, energy performance certificate, and the "How to Rent" booklet. These documents must have been provided to the tenant in advance in order for a valid section 21 notice to be served.

 

The parties' position

The landlords argued that the documents had been properly served by post, The landlords relied on three arguments:

• The tenancy agreement which provided that "Any notice sent to the Tenant under or in connection with this agreement shall be deemed to have been properly served if [it were] sent by first class post to the Property";
• Under the common law, there is a presumption that a properly addressed letter has been received, and that this presumption had not been rebutted by the tenant's evidence; and
• Pursuant to section 7 the Interpretation Act 1978, deemed service is effected by properly addressing, pre-paying and posting a letter containing the relevant document. If the landlords were able to show that these steps were taken, they argued that it then fell to the tenant to prove that the documents had not been received (which the tenant had not done).

The tenant argued in response that:

• The documents were not notices and accordingly the relevant clause of the tenancy agreement did not apply;
• The landlords' understanding of the common law position did not reflect the law; and
• The Interpretation Act 1978 did not apply to this case, as the Housing Act 1988 did not specifically state that the documents could have been served by post.

The County Court found in favour of the landlords on all three points, and the tenant appealed the decision to the Court of Appeal.

 

Decision of the Court of Appeal

The Court of Appeal dismissed the appeal, finding in favour of the landlords on two out of the three grounds. The Court ruled in favour of the landlords on the following points:

• The letter serving the documents on the tenant constituted a "notice" under the tenancy agreement. The Court considered a notice to be anything that informed the tenant of something to do with the tenancy for a formal purpose. In essence, any document that the landlord may be required to serve under the tenancy agreement constituted a "notice"; and
• Under common law a letter sent to the correct address will be presumed to have been validly served unless the recipient of that letter can rebut the presumption (and the tenant's evidence fell short of doing this).

The Court of Appeal sided with the tenant in determining that the Interpretation Act 1978 would only apply to notices required to be served by statute where that statute expressly refers to service by post. As there was no such reference in the Housing Act 1988, the Interpretation Act 1978 would not apply to service of the documents on the tenant. However, this was not enough to save the tenant's appeal.

 

Summary

D'Aubigny v Khan underscores several key points for landlords. Firstly, landlords can remain confident in their ability to serve important documents via post, provided they adhere to proper addressing and pre-payment procedures. This case also highlights the importance of having a well-drafted tenancy agreement that clearly provides for deemed service of documents.

Additionally, with the upcoming changes being introduced by Renters' Rights Bill, landlords will likely need to serve several new mandatory documents. The ruling clarifies that if landlords can demonstrate that a document was correctly addressed, pre-paid, and sent, the burden of proof shifts to the tenant to show that the document was not received. A simple denial will not suffice.