Service of documents and what is a “notice”? Khan v D’Aubigny [2025] EWCA Civ 11

In an important decision, the Court of Appeal has today handed down judgment in the case of Khan v D’Aubigny. The case is required reading for all property lawyers, dealing as it does with service of notices at common law, under contracts and under the Interpretation Act 1978. It also grapples with the question of what is a “notice”?

The landlords sought possession of a property let to the tenant under an assured shorthold tenancy. They relied on s.21, Housing Act 1988. The tenant accepted she had received the s.21 notice but denied that she had received the gas safety certificate, energy performance certificate and How to Rent booklet. Those documents must, of course, be given to a tenant before any s.21 notice can be given and so are a precondition for any valid claim for possession. The landlords contended that they had sent the documents to her by post and by recorded delivery and they were therefore “given”. They advanced three reasons for that position.

First, they contended that s.7, Interpretation Act 1978 applied and that once they had proved that the documents had been posted and properly addressed, it fell to the tenant to show they had not been received and her bare denial of receipt was insufficient.

Secondly, they relied on a clause in 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…sent by first class post to the Property”.

Thirdly, they contended that there was also a common law presumption of receipt of a properly addressed letter and that had not been rebutted.

The tenant resisted all three arguments. She denied that the 1978 Act applied to the Housing Act 1988 as nothing in the 1988 Act “required” or “authorised” service by post. She contended that the gas safety certificate etc was not a “notice” under the tenancy agreement. Finally, she denied that the common law rule operated as the landlord contended.

The Deputy District Judge and Circuit Judge found for the landlord on all three points and granted/upheld a possession order under s.21, HA 1988.

The Court of Appeal found for the landlord on the second and third points and therefore dismissed the appeal. It held that:

• (a) The 1978 Act presumption of service in s.7 is not engaged unless the statute expressly refers to service of a document by “post”. It is not enough that service by post is a permissible means of serving the document in question. It follows that the 1978 Act does not apply to (for example) s.21 HA 1988 notices.
• (b) The letter serving the gas safety certificate etc was a, “notice” within the meaning of the tenancy agreement. A notice is simply something which notifies a recipient of something for a formal purpose. The letter serving the gas safety certificate, energy performance certificate and How to Rent guide was therefore a notice and was properly served under the terms of the tenancy.
• (c) There was a common law presumption that a properly addressed letter which is posted is presumed to reach its destination unless the intended recipient can prove the contrary (which was not done in the present case).

Justin Bates KC and Richard Clarke represented the successful landlords and were instructed by Gateley Legal.

Tom Morris represented the intervenor, the National Residential Landlords Association, instructed by JMW solicitors.

The decision can be found here.