Kinch v Bullard

[alangee]

Cabot are quoting Kinch v Bullard in defence of their not sending an NoA by recorded post. Can anyone supply any info on this?

 

Alan

[alangee]

Looking at the synopsis of Kinch v Bullard, as I understand it, Bullard (the joint owner) sent her husband Kinch a NoA by ordinary post. He fell ill and was hospitalised, and she destroyed the NoA before he could receive it.

Surely the judgement in Kinch v Bullard was that it was accepted that the NoA was delivered, the fact that it was subsequently destroyed before the recipient got to see it is by the way.

 

If it had never been accepted as being delivered, then I would think that the judge would have taken sec 196(4) into account.

 

Alan

 

[DonkeyB]

I would think that actually works against them, because this case specified that there must be evidence that a notice had been delivered. “This does not necessarily mean that it must have been read or even received by [Mr X].”

 

But it distinctly states that there must be evidence it was delivered – which there was – not evidence that it was sent.

 

Google it – it’s there.

[alangee]

Thanks DB, that is what I was thinking as well, but I cannot find the full judgement.

 

Alan

[kobryn]

Apologies if this is too late. I'm doing an essay on this case and thought I'd post the judgment for you.

 

Neuberger J

27 July. Neuberger J. handed down the following judgment.This is the hearing of an appeal by the plaintiffs against an order of Master Dyson. It raises an intriguing point relating to service of notices, although it arises out of rather sad facts.

By a conveyance of 23 March 1987 Bryan Johnson and his wife Sheila Johnson purchased the freehold of 16, York Road, Martlesham Heath, Ipswich (“the property”) in fee simple as beneficial joint tenants. They occupied the property as their matrimonial home.

It appears that by 1994 Mrs. Johnson was considering whether or not to begin divorce proceedings. Possibly triggered by the fact that she had been diagnosed as terminally ill with cancer, Mrs. Johnson consulted solicitors at the end of June 1994, and one of the matters she discussed with them was severing the joint tenancy of the property. In the absence of such severance, the doctrine of survivorship would have applied, so that, on Mrs. Johnson's death, the whole legal and beneficial ownership in the *425section 36(1) of the Law of Property Act 1925. However, the proviso to section 36(2) provides: property would have vested in Mr. Johnson: see

“where a legal estate … is vested in joint tenants beneficially, and any tenant desires to sever the joint tenancy in equity, he shall give to the other joint tenants a notice in writing of such desire … and thereupon the land shall be held in trust on terms which would have been requisite for giving effect to the beneficial interests if there had been an actual severance …”

The effect of the service of a notice of severance by Mrs. Johnson on Mr. Johnson would, therefore, have been that, on the death of Mrs. Johnson, the legal title to the property would have vested in Mr. Johnson, but he would have held the beneficial interest on trust in equal shares for himself and on the trusts of the will of Mrs. Johnson.

For some time thereafter, Mrs. Johnson took no further steps in relation either to the severance of the joint tenancy or to the divorce. However, in June 1995 her solicitors served a divorce petition on Mr. Johnson, to which he filed an answer. Meanwhile, on 31 July 1995 Mrs. Johnson instructed her solicitors to prepare and serve on Mr. Johnson a notice of severance of the joint tenancy of the property. On 3 August 1995 the solicitors prepared a notice of severance which Mrs. Johnson signed on 3 August 1995. The notice was then sent by ordinary first class post to Mr. Johnson, under cover of a letter dated 4 August, in an envelope addressed to him at the property, which still remained the matrimonial home.

During the weekend of 5/6 August 1995 Mr. Johnson suffered a serious heart attack, and he was admitted to hospital on 7 August. Meanwhile, either on 5 August or on 7 August, the postman put the notice through the letter box at the property. Mrs. Johnson picked it up and destroyed it. This was presumably because she had come to the conclusion that, in view of his serious heart attack, Mr. Johnson was likely to predecease her, and that it would therefore be she, rather than he, who would benefit if the tenancy was not severed. Mr. Johnson died in hospital on 15 August 1995. Thereafter, nothing of relevance happened until Mrs. Johnson died on 6 January 1996.

On 5 November 1997 the plaintiffs, who are the executors of Mr. Johnson, issued these proceedings against the defendants, who are the executors of Mrs. Johnson. The writ and statement of claim seek two substantial heads of relief, of which only the first is relevant. It is a declaration that the plaintiffs are entitled to a one-half beneficial share of the property or the proceeds of sale thereof. On 29 January 1998 the plaintiffs issued a summons for the determination of the issue as to whether the posting to and subsequent delivery at the property” of the notice was effective to sever the beneficial joint tenancy.” In the event of it being determined that severance was effected, then the plaintiffs effectively seek the declaration I have set out above. The summons came before Master Dyson, who perhaps understandably thought the case was unsuitable for summary judgment.

As these are summary proceedings, it is not open to me to make any findings of fact, except, perhaps, where I am satisfied that no further evidence could be available (a point which is potentially relevant in the present case, because the two main protagonists are dead). Mr. Johnson spent the night of 4/5 August with his son (by an earlier marriage), who, as I understand it, has said that his father visited the property on the *426 morning of 5 August and saw the notice. However, that is denied by the defendants, and for the purpose of this summons I should clearly proceed on the assumption that it is not correct. Further, the defendants contend, and the plaintiffs are content that I should assume for the purpose of this summons, that the notice was not served until 7 August, and that, by that time, Mrs. Johnson had changed her mind about wanting to sever the joint tenancy, because she appreciated that her husband was likely to predecease her.

In light of the provisions of section 36(2) of the Act of 1925, the question as to whether or not the joint tenancy was severed depends on whether Mrs. Johnson “gave” the notice to Mr. Johnson. As a matter of ordinary language, at least on the assumptions I am currently making, the notice was not “given” to Mr. Johnson, because he never received it. In order to justify the contention that the notice was in fact given to Mr. Johnson, the plaintiffs rely on section 196 of the Act of 1925. Subsection (1) stipulates that any notice given under the Act of 1925 “shall be in writing;” subsection (2) deals with service of notices on a lessee or mortgagor. Section 196(3) and (4) is in the following terms:

“(3) Any notice … shall be sufficiently served if it is left at the last-known place of abode or business in the United Kingdom of the … person to be served, or, in case of a notice required or authorised to be served on a lessee or mortgagor, is affixed or left for him on the land or any house or building comprised in the lease or mortgage …

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the … person to be served, by name, at the aforesaid place of abode or business … and if that letter is not returned through the post office undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.”

Section 196(6) excludes the operation of the section “to notices served in proceedings in the court”

The plaintiffs' case relies on section 196(3) and is as follows. First, the “last-known place of abode” of Mr. Johnson, until his death on 15 August 1995, was his actual abode, namely the property. Secondly, the notice was “left” at the property, because it was posted through the letter box and remained on the mat, albeit that Mrs. Johnson shortly thereafter removed and destroyed it. Thirdly, in those circumstances, the requirements of section 196(3) are satisfied, and the notice was duly “served.” In this connection, it is right to point out that there is no distinction between “serving” in section 196 and “giving” in section 36(2): see In re 88, Berkeley Road, N.W. 9 [1971] Ch. 648, 652–653, per Plowman J. and Holwell Securities Ltd. v. Hughes [1974] 1 W.L.R. 155, 158f, 161h, per Russell and Lawton L.JJ.

On behalf of the defendants, it is contended none the less, that the notice was not validly “served” or “given,” and that therefore the joint tenancy was never severed. As the case developed, a number of arguments were put forward on behalf of the defendants.

First, it is contended that, reading section 196(3) and (4) together, it is not open to the plaintiffs to rely upon section 196(3), if the notice was sent by post, unless it was sent by registered post (which includes the alternative of sending by recorded delivery in light of the Recorded Delivery Service Act 1962). I do not accept that argument. As a matter of *427 ordinary language, section 196(3) provides that service of a notice “at the last-known place of abode or business” of the addressee is good service, and there is no suggestion that it matters how that service is effected, i.e. whether it is by the giver of the notice, his agent, courier service, ordinary post, recorded delivery or registered post, or some other method. Provided that it can be established that, irrespective of the identity of the person who delivered the notice to a particular address, it was delivered to that address, then the notice has been validly served at that address, provided that it is the addressee's last-known abode or place of business.

Section 196(4) is a separate and additional provision. It provides, in the first place, that if a notice is served by registered post or recorded delivery, then, even if it can be shown not actually to have been delivered at the relevant premises, the notice will none the less be deemed to have been served at the premises, unless returned undelivered. Secondly, it provides that (assuming that it is not returned undelivered) a notice sent by registered post or recorded delivery is deemed to have been served at the time when it would, in the ordinary course of post, have been delivered. The use of the word also” near the beginning of section 196(4) appears to me to emphasise that, far from being intended to be a provision cutting down the generality of section 196(3), it is intended to be an additional provision.

Although concerned with a different statutory provision, namely section 53 of the Agricultural Holdings Act 1923, it appears to me that the reasoning of MacKinnon L.J. (with whom Goddard L.J. and Asquith J. agreed) in Sharpley v. Manby [1942] 1 K.B. 217 is difficult, if not impossible, to reconcile with this first argument of the defendants.

Secondly, it is said on behalf of the defendants that, as a matter of general principle, it is not enough for the plaintiffs to show that the notice was left at the property by the postman, if the defendants can establish that Mr. Johnson never actually received it. In other words, the defendants' contention is that section 196(3) raises a presumption, but not an irrebuttable presumption, that serving an appropriately addressed notice on the appropriate premises results in service of the relevant notice.

On the face of it, comparison between section 196(3) and section 196(4) could be said to give some support to this argument, in that the latter subsection could be said to deem service to have occurred irrevocably, whereas the former subsection does not do so. However, in my judgment, that is not a good point. Section 196(4) deems service on the premises to have taken place if the requirements of sending by registered post and non-return by the Post Office are satisfied, even if it can be shown that physical service did not in fact take place on those premises. Section 196(3), on the other hand, requires it to be established that physical service did in fact take place on the appropriate premises, before any deemed service can arise.

It appears to me that the natural meaning of section 196(3) is that, if a notice can be shown to have been left at the last-known abode or place of business of the addressee, then that constitutes good service, even if the addressee does not actually receive it. Although frequently cited as conclusive authority on the point, there is room for argument that In re 88, Berkeley Road, N.W. 9 [1971] Ch. 648 does not actually establish this proposition. Although the passage in the judgment of Plowman J. at pp. 652–653 appears to be in point, it was actually concerned with section 196(4), because the notice in that case was served by recorded delivery (see p. 651b) and therefore the case is at least arguably *428 distinguishable. It is fair to say, however, that the decision appears to have been treated by the Court of Appeal as authority for the proposition that a notice served in accordance with section 196(3) was validly served even if it could be shown never to have come to the attention of the addressee: see Wandsworth London Borough Council v. Atwell (1995) 94 L.G.R. 419. Further, it is hard to see why the reasoning of Plowman J. should not apply to section 196(3) as much as to section 196(4).

Quite apart from this, it appears to me that it is not sensibly possible for the defendants to distinguish the decision of the Court of Appeal in Newborough (Lord) v. Jones [1975] Ch. 90 on this point. In that case, the Court of Appeal held that a notice pushed under the door personally by the landlord was validly served even if it did not come to the addressee's attention (e.g. because it went under the linoleum or was eaten by a dog). That case was concerned with section 92(1) of the Agricultural Holdings Act 1948, which provided that any notice was validly served under that Act “if it is delivered to [the relevant person], or left at his proper address, or sent to him by post in a registered letter.” Russell L.J. said, at p. 94:

“if served by leaving at the proper address of the person to be served, [the notice] must be left there in a proper way; that is to say, in a manner which a reasonable person, minded to bring the document to the attention of the person to whom the notice is addressed, would adopt. This is, to my mind, the only qualification (or gloss, if you please) proper to be placed on the express language of the statutory provision.”

Thirdly, it was contended on behalf of the defendants that the fact that Mrs. Johnson changed her mind and no longer “desired to sever the joint tenancy” by the time that the notice might otherwise have been said to have been “given” (i.e. by the time that the notice arrived at the property) meant that the notice was ineffective to effect such severance. This argument is based on the language of section 36(2). Assuming that the notice was validly “given” pursuant to section 196(3), the giving of the notice only occurred when it was actually delivered to the property, and at that time Mrs. Johnson no longer “desired to sever the joint tenancy.” Accordingly, it is said that the statutory precondition for the giving of a valid notice was not, at the date it was given, satisfied, because at that date Mrs. Johnson did not have the necessary “desire”

In my judgment, this argument is not correct. The function of the relevant part of section 36(2) is to instruct any joint tenant who desires to sever the joint tenancy how to do it: he is to give the appropriate notice (or do such other things as are prescribed by the section). Clear words would be required, in my judgment, before a provision such as section 36(2) could be construed as requiring the court to inquire into the state of mind of the sender of the notice. Once the sender has served the requisite notice, the deed is done and cannot be undone. The position is the same as with a contractual right to determine a lease, which normally entitles either or both parties to serve notice to determine the lease if it desires to put an end to the term. Once the procedure has been set in train, and the relevant notice has been served, it is not open to the giver of the notice to withdraw the notice, and I have never heard it suggested that a change of mind before the notice is given would render it ineffective.

I reach this conclusion based on the proper construction of section 36(2). However, it appears to me that it is also correct as a matter of policy. If it were possible for a notice of severance or any other notice *429 to be ineffective because, between the sender putting it in the post and the addressee receiving it, the sender changed his mind, it would be inconvenient and potentially unfair. The addressee would not be able to rely confidently upon a notice after it had been received, because he might subsequently be faced with the argument that the sender had changed his mind after sending it and before its receipt. Further, as I have already mentioned, it is scarcely realistic to think that the legislature intended that the court could be required to inquire into the state of mind of the sender of the notice in order to decide whether the notice was valid.

I am inclined to think that the position would be different if, before the notice was “given,” the sender had informed the addressee that he wished to revoke it. In such a case, it appears to me that the notice would have been withdrawn before it had been “given.” After all, as is clear from the reasoning at first instance and in the Court of Appeal in Holwell Securities Ltd. v. Hughes [1973] 1 W.L.R. 757, 761–762; [1974] 1 W.L.R. 155, 158–159, 160–162, a notice sent by post is not “served” in accordance with section 196(3) until it arrives at the premises to which it has been saddressed. Accordingly, it seems to me that, while the notice is still in the post, it has not been given, and, until it is given, the sender has in effect a locus poenitentiae whereby he can withdraw the notice, but only provided his withdrawal is communicated to the addressee before the notice is given to, or served on, the addressee. I should emphasise, however, that this is no more than a tentative view.

Fourthly, it is said that, in the present case, the notice was not “left” at the property within the meaning of section 196(3). Assuming that, before the notice was actually posted through the letter box, Mrs. Johnson had decided that she would pick it up and destroy it, and bearing in mind that she was the person whose notice it was, it is said that the notice was never really “left” for Mr. Johnson at the property. In my judgment, that argument is wrong as a matter of principle, and would be inconvenient to apply in practice.

So far as the principle is concerned, it seems to me that, by putting the notice in the post, Mrs. Johnson effectively left it to the Post Office to serve the notice on her behalf. One therefore has to ask oneself whether the person who was, in effect, appointed by Mrs. Johnson to serve the notice acted in accordance with the test propounded by Russell L.J. in Newborough (Lord) v. Jones [1975] Ch. 90. In my judgment, by posting the envelope containing the notice, and addressed to Mr. Johnson at the property, through the letter box of the property, the postman served the notice in accordance with that test. I do not think that it is right to test the matter by reference to what Mrs. Johnson thought or intended, because she left it to the Post Office to serve the notice. Accordingly, subject to any other arguments, once the notice was posted through the letter box, it had been “served” in accordance with section 196(3), and therefore “given” in accordance with section 36(2), and, as I have mentioned, such a notice cannot be “unserved” or “ungiven”

So far as convenience is concerned, I consider that, if section 196(3) is satisfied once it is shown that the relevant document was bona fide delivered to the last-known place of abode or business of the addressee, then, although it might lead to an unfair result in an exceptional case, the law is at least simple and clear. On the other hand, if the court starts implying exceptions into the clear and simple statutory procedure, confusion and uncertainty could result. Thus, if, by picking up the notice after it was posted through the front door of the property, Mrs. Johnson *430 might have prevented the notice being “served,” problems could arise. Would there be a maximum time within which Mrs. Johnson would have to pick up the notice before it would be held to be validly served? Would it make any difference if Mr. Johnson had seen the envelope containing the notice on the mat? What if Mrs. Johnson had picked up the notice and had kept it but not destroyed it? What if she had picked up the notice intending to destroy it but had changed her mind? What if she had picked up the notice and tried to destroy it, but Mr. Johnson had seen her doing it, or had seen and read the imperfectly burnt notice?

The defendants also rely on the unusual feature of this case that the person who physically got the notice, and indeed who destroyed it, was the very person who sent it, namely Mrs. Johnson. It can be said to be one thing for a sender to be entitled to assume that he has given a notice to the addressee if he serves at the property, even if a third party picked up the notice and filed it away or destroyed it: as between the sender and the addressee, one can see good policy reasons as to why such a risk, like the possibility of the dog eating the notice, should be that of the addressee and not that of the sender. However, there is obviously a powerful argument for saying that the position should surely be different where it is the sender herself who has picked up the notice and filed it away or destroyed it.

It is not so much that the facts of this case cause me concern: if the defendants, as the executors of Mrs. Johnson, are effectively “landed” with the consequences of Mrs. Johnson having served the notice, that does not seem to me to be a particularly unfair result, particularly bearing in mind the extent to which equity tends to lean against joint tenancies: see the discussion in Megarry & Wade, The Law of Real Property, 5th ed. (1984), p. 427. However, I am concerned that, if it could be said that the notice in the present case was validly served, unfair advantage could be taken of an addressee by the sender of a notice if the sender (or his agent) had some means of access to the notice after it was served in accordance with section 196 but before the addressee actually saw it, and this resulted in the notice being destroyed or hidden without the addressee ever becoming aware of it. Accordingly, I was at one time attracted by the proposition that some sort of qualification should be imposed on the provisions of section 196, so as to exclude from the concept of valid service a case where the sender has, in effect, intercepted the notice before it was received by the addressee, thereby somewhat extending the qualification or gloss laid down by Russell L.J. in Newborough (Lord) v. Jones.

On reflection, however, I think it neither appropriate nor desirable to impose such a further qualification on the plain words of section 196(3). First, as a matter of general principle, the court should be slow to imply qualifications into a statutory provision, particularly when that provision is clear and simple in its effect and is intended to have practical consequences. Secondly, it does not seem to me that a conclusion in favour of the plaintiffs in the present case should lead to any unfair abuse. In the present case, it is Mr. Johnson (or, more accurately, his executors) who wish to allege that the notice delivered by Mrs. Johnson was validly served in light of section 196(3). There is no potential for abuse in that context. If, however, it was the defendants, the executors of Mrs. Johnson, who were seeking to allege that the notice was validly served, then it seems to me that it would be open to the plaintiffs, as executors of Mr. Johnson, to contend successfully that, despite the apparent applicability of section 196(3), valid service had not been effected. In my judgment, it *431 would not have been open to the defendants to contend, as against the plaintiffs, that the notice had been validly served on the instant facts, because it cannot be right for a sender of a notice, who had intentionally taken steps to ensure that it did not in fact come to the attention of the addressee, to contend that it was served on him. In other words, whatever section 196 provides, it could not be relied on by the sender of a notice as an engine of fraud. The very purpose of serving a notice is to convey information, with legal consequences, on the addressee: it cannot be right that the sender of a notice can take positive steps to ensure that the notice does not come to the attention of the addressee, after it has been statutorily deemed to have been served, and then fall back on the statute to allege that service has none the less been effected.

In reaching this conclusion, I have not overlooked the decision of Harman J. in Van Haarlam v. Kasner (1992) 64 P. & C.R. 214, where he held that a notice sent in accordance with section 196(3) to the addressee's home was validly served even though the sender knew that the addressee was in prison at the time: see p. 221. It seems to me that it is one thing for the sender of a notice to take advantage of a statutory provision such as section 196(3) simply to effect service, while merely knowing that the addressee will not for some reason be at his place of abode or business when the notice is served there, or indeed for some time thereafter. Any well advised potential addressee who is to be absent from the premises can normally make arrangements for someone to be on the premises, or to visit the premises from time to time, for the purpose of collecting, and where necessary opening, incoming mail. On the other hand, it is quite another thing for the sender of a notice to go through the steps envisaged by section 196 for the purpose of effecting service but thereafter to take positive steps calculated to ensure that the addressee of the notice does not actually receive it. In such a case, it appears to me that, while there is nothing to prevent the addressee from relying on section 196, and therefore from contending that service has been effected in accordance with its terms, the same is not true of a sender of a notice who (particularly after deemed service) has taken positive steps to thwart its ultimate purpose, namely to be served on the addressee.

A final argument raised by the defendants relied on comparing the provisions of section 196 with the provisions of R.S.C., Ord. 65, r. 5(1) and Ord. 10, r. 2(a) and (b) as amended. Even in the absence of section 196(6), it seems to me quite illegitimate to rely upon differently worded provisions contained in the RSC when construing a statutory provision, particularly one enacted some 40 years before the Rules came into effect.

Accordingly, because the notice was left at the last-known abode of Mr. Johnson by the postman putting it through the letter box of the property in the normal course of post on 7 August 1995, it was validly served in accordance with section 196(3), and, subject to one point, the fact that the sender, Mrs. Johnson, having decided to do so, picked up the notice and destroyed it when it arrived does not alter this conclusion. The one qualification to this conclusion is that it would not have been open to Mrs. Johnson to contend against Mr. Johnson (unless he was content to accept it) that the notice was validly served in these circumstances if, as a result of her implementing the decision, Mrs. Johnson thereby ensured that Mr. Johnson never saw, or even knew of, the notice.

In these circumstances, given that the plaintiffs, as executors of Mr. Johnson, wish to contend that the notice was validly served, and that *432 it is the defendants, as executors of Mrs. Johnson, who deny that service of the notice was effected, I conclude that the notice was validly served, and that the plaintiffs are entitled to the declaration they seek.

[Reported by Nicholas Mercer Esq. , Barrister]

[alangee]

Thanks, kobryn.

 

Alan