Pease v Carter [2020] EWCA Civ 175: When is an error not an error?

When does an error invalidate a notice? Are notices of proceedings for possession under section 8 of the Housing Act 1988 (“Notices”) invalid if they contain an obvious typographical error? 

Facts

A landlord served a notice on his tenants under section 8 of the Housing Act 1988 (‘the Act’) giving notice of proceedings for possession. Under section 8, the earliest date that proceedings may begin must be specified in the notice.

The notice was given on 7 November 2018 but mistakenly said that court proceedings would not begin before 26 November 2017.

At the first instance hearing the County Court determined that the landlord’s defective notice could not be saved by applying the reasonable recipient test laid down by the House of Lords in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19 (‘the Mannai principle’). 

The Mannai principle includes the notion that minor defects in unilateral contractual notices will not necessarily invalidate the notice if the reasonable recipient, with knowledge of the factual and contextual background, is capable of understanding the serving party's intention.

The landlord appealed and was granted permission by the Court of Appeal on a point of general importance.

The two main questions for the Court in this case were:

1. Should the Mannai principle apply to Section 8 notices or not? If so, the notice would be valid despite the error. If not, then not. Previous court decisions had suggested that this test applied to contractual notices, but not statutory ones.
2. Even if the ‘reasonable recipient’ principle does apply to a statutory notice, is it still invalid if the notice doesn’t comply strictly with the necessary statutory requirements? Or is it enough if the notice substantially achieves the statutory purpose?

Law

The Court of Appeal 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.”

Decision

The Court of Appeal, applying the Mannai principle, 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 stated, “Proceedings will not be issued before 26 November 2018 but will be issued within 12 months of service of the notice.”

Comment

This is a good and sensible decision, clearly a simple and obvious error on a date should not invalidate a notice especially where there is a covering letter which sets out the date correctly.