Are notices of proceedings for possession under section 8 of the Housing Act 1988 (“Notices”) invalid if they contain an obvious typographical error? Does the test of the “reasonable recipient” provide protection against invalidation? These questions raise an important point of principle.
Facts
The Notices stated that the court proceedings would not begin until after 26 November 2017. The intended date was 26 November 2018. It was common ground that an obvious typographical error was insufficient to satisfy the reasonableness test. It must be clear what the intended date actually was.
Issues
Two issues needed to be resolved. First, if the year (2017) was an error, then could the day (26) also be an error? Secondly, did the reasonable recipient test apply to Notices?
Law
Lord Justice Arnold – with whom Floyd and Underhill LJJ agreed – analysed the authorities before drawing the following four conclusions on the law:
“i) A statutory notice is to be interpreted in accordance with Mannai v Eagle [[1997] A.C. 749, [1997] 2 WLR 945 (HL)], that is to say, as it would be understood by a reasonable recipient reading it in context.
ii) 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.
iii) It remains necessary to consider whether, so interpreted, the notice complies with the relevant statutory requirements. This involves considering the purpose of those requirements.
iv) 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.”
Discussion
The answer to the first issue was straightforward:
“[T]he reasonable recipient would conclude that the person who typed the Notices 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.”
Any remaining doubt may be dispelled from the covering letters. A reasonable recipient would take these letters into account when interpreting a statutory notice.
To resolve the second issue, statutory notices must be interpreted in accordance with Mannai v Eagle; and it is necessary to consider whether the Notices comply with statutory requirements. To do so, the purpose of the statutory requirement must be identified. For Notices:
“[T]he purpose of the requirement for at least two weeks’ notice is to give the tenant time to take steps to deal with the threatened proceedings e.g. by trying to pay off arrears of rent, taking advice, obtaining representation and/or seeking alternative accommodation.”
Accordingly, the route to resolving the second issue was as follows:
“Did the Notices serve that purpose? Given that the date of 26 November 2017 was an obvious typographical error and that a reasonable recipient would have understood that the intended date was 26 November 2018, I consider that the Notices did serve the statutory purpose of giving the Tenants at least two weeks’ warning of the commencement of proceedings. (In the event, proceedings were not commenced until a further month had elapsed, but in my view that is an irrelevant consideration, because the Landlord might have commenced proceedings on 27 November 2018.) Accordingly, the Notices were valid.”