Posting an application to the Tribunal

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A recent residential case Mahtaban Salehabady v Trustees of the Eyre Estate [2017] UKUT 60 (LC) contains a useful reminder of the principles regarding service of documents. Kerry Bretherton QC, a property silk practising from Tanfield Chambers, provides a summary.

Mr Salehabady was a tenant of premises in St John’s Wood, London, entitled to an extended lease. The relevant notices under s42 and s45 of the Leasehold Reform Housing and Urban Development Act 1993 “the 1993 Act” were served and the six-month deadline for starting proceedings before the Tribunal was 21 April 2016. The tenant’s solicitor posted the application and supporting documents by first class post on 18 April 2016.

The First-tier Tribunal (FTT) held that the application had been received outside the time limit and that without evidence from the applicant in the form of a certificate of posting that it had been received within the prescribed time limits. The tenant appealed to the Upper Tribunal with the permission of the Deputy President.

The appeal

Rule 26(2) of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, “the Rules” requires that the application “must be made” no later than six months beginning on the date on which the counter notice was given.  An applicant starts proceedings by “sending or delivering” to the Tribunal a notice of application. Nothing within the procedure requires that the application must be sent by recorded delivery or that a particular form of proof of posting was required.

The Tribunal were directed to two lines of authority which suggested that the service had been valid. Firstly, in Barnes v St Helens MDC [2007] 1 WLR 879 the Court of Appeal held that personal injury proceedings were “brought” within the meaning of s11 Limitation Act 1980 on the date of delivery to the court office, so the claimant was not prejudiced by the delay in issuing the claim by the court staff, per Tuckey LJ at paragraph 16. Secondly, in Webber Transport v Railtrack [2004] 1 WLR 230 the Court of Appeal considered service in relation to renewal of business tenancies and the Court of Appeal noted that so long as one of the specified methods of service-personal, leaving at the last place of abode and sending by registered or recorded delivery post were adopted then service was proved even if the notice was not received and had gone astray.

Decision on appeal

The learned judge accepted that the word “made” in s38(2) of the 1993 Act involved a unilateral act by the applicant. He also accepted that either of the two methods of starting proceedings in rule 26(1) were sufficient; sending or delivering a notice of application to the Tribunal. Accordingly, posting a correctly addressed and sufficiently stamped notice was sufficient to start the proceedings. The relevant date was the date of posting and so even if the notice is delayed or did not arrive then the FTT proceedings have started. The case was remitted to the FTT as it was not known whether the evidence of the tenant’s solicitor that he posted the document on 18 April 2016 was challenged.

Therefore, it is advisable that applications are made in good time and such postage that can be verified, for example recorded or special delivery.

This article first appeared in RICS newsletter and can be viewed here.