Pease v Carter  EWCA Civ 175
1st May 2020
The Court of Appeal held that the reasonable recipient test set down in Mannai Investment Co Limited v Eagle Star Assurance Co Limited  AC 747 applies to notices served under section 8 of the Housing Act 1988.
The Appellant was the landlord and the Respondent the tenant under an assured shorthold tenancy. The tenant was in rent arrears. On 7 November 2018, the landlord served notice on the tenant under section 8 of the 1988 Act, stating that possession proceedings would not begin until 26 November 2017, when he meant to say 26 November 2018. The tenant argued that the notice was invalid.
The issue for the court was whether the Mannai test applies to statutory notices served under section 8 of the 1988 Act.
The judge held that, though the error was an obvious typographical one and the reasonable recipient would have realised that the intended date was 26 November 2018, the reasonable recipient Mannai test did not apply to section 8 notices, applying Fernandez v McDonald  EWCA Civ 1219 – the statute was clear and precise, it was not difficult for landlords to comply and the defect could be easily cured by service of a further notice. The possession claim was dismissed.
Decision on Appeal
The Court of Appeal first pointed out that there was a wealth of prior authority to the effect that the Mannai approach to interpretation is applicable to statutory notices, but with the qualification that it remains necessary to consider whether the notice satisfies the relevant statutory requirements. That involves consideration of the purpose of those requirements.
The Court then went on to examine the decision in Fernandez anxiously, and highlighted that the actual reasoning of Hale LJ in that case had been that a reasonable recipient would not have understood the landlord’s intentions regarding the date in the notice. Accordingly, the reasonable recipient would not have understood what the server intended to convey, and Mannai therefore did not assist the landlord on the facts of that case in that case. However, nothing in the decision suggested that Mannai did not apply to statutory notices at all.
Further, whatever Lewison LJ may have said in Spencer v Taylor  EWCA Civ 1600, the court is able to correct obvious mistakes in a statutory notice if it is satisfied that a reasonable recipient would have realised both that a mistake had been made and what was the server actually intended to convey. As set out above, in all cases, it is still necessary to consider whether the notice complies with the statutory requirements, including the purpose of those requirements.
Additionally, Fernandez is not authority for the proposition that Mannai does not apply where the statutory requirements are clear and precise, are not difficult to comply with and there are no serious consequences for the defaulting party, as the judge at first instance thought.
Accordingly, it was held that the Mannai test applies to section 8 notices.
For the reasons set out above, it was then necessary to establish whether the statutory requirements had been complied with. Unlike a notice under section 21 of the Housing Act 1988, the date in a section 8 notice has no contractual significance. Its purpose is to give the tenant time to deal with the threatened proceedings. The notice contained an obvious typographical error and did, on a reasonable reading, give the tenant the requisite two weeks’ warning.
The appeal was therefore allowed.
This is a helpful decision, not only because it makes it clear that the Mannai test applies to notices served under section 8 of the Housing Act 1988, but also because it clarifies the interaction between the decisions in Fernandez and Spencer v Taylor such that there is now no inconsistency between the ratios of both.
Expertise: Landlord & Tenant
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