EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Osborne Lord Carloway Lord Emslie	[2009] CSIH 71 XA41/08 OPINION OF THE COURT delivered by LORD OSBORNE in an Appeal from the Sheriffdom of Glasgow and Strathkelvin at Glasgow by KODAK PROCESSING COMPANIES LIMITED Pursuers and Respondents; against SHOREDALE LIMITED Defenders and Appellants: _______

For Pursuers and Respondents: Sandison; DLA Piper Scotland LLP

For Defenders and Appellants: Sanders; Fyfe Ireland LLP

27 August 2009

The background circumstances

[1] Shirlett and Tudor Estates Limited are the heritable proprietors of subjects at 719 South Street/10 to 18 Clydeholm Road, Glasgow. The pursuers and respondents are tenants under a lease, dated 23 October 1970 and 4 August 1971. By missives of let between the respondents and the appellants, the respondents sub-let the subjects to the appellants. The annual rent was £60,000, exclusive of value added tax, if any, properly chargeable thereon, payable quarterly in advance on the rent payment dates specified in the lease. Those dates were 25 March, 24 June, 29 September and 25 December. The lease provided for a rent-free period, which came to an end on 1 August 2007.

[2] Clause 7.1 of the lease between the respondents and appellants is in, inter alia, the following terms:

"7.1 Irritancy

Subject to the provisions of sections 4, 5 and 6 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 that if the rent herein provided for or any part thereof shall at any time be in arrear (whether demanded or not)...then and in any such case it shall be lawful for the Landlord at any time thereafter by notice in writing to bring this Lease to an end forthwith and to enter the Property and repossess and enjoy the same as if this Lease had not been granted but...the Landlord shall not exercise such option of forfeiture or irritancy unless and until it shall first have given, under express threat of irritancy, written notice to the Tenant and any heritable creditor (approved by the Landlord in terms of this Lease) requiring the same to remedied and the Tenant and any such permitted heritable creditor shall have failed to remedy the same within such reasonable period as shall be provided in the notice, which in the case of non-payment of rent or other sum of money shall be 14 days only...".

[3] It is a matter of agreement that the appellants failed to pay to the respondents rent which fell due to be paid on 29 September 2007, pursuant to the lease. By a notice dated 9 October 2007, the respondents required the appellants to make payment of the sum in question within fourteen days of the effective date of service upon them of the notice. The appellants did not make payment of the total sum said to be due to the respondents, as required by that notice, although they did make payment of a lesser sum. Accordingly, a further notice, dated 24 October 2007, was served upon the appellants, stating that the lease was now irritated. The respondents therefore required the appellants to remove from the subjects immediately. The appellants did not follow that course, in consequence of which the respondents raised the present action against them in Glasgow Sheriff Court. In the action, the respondents craved the court, first, to find and declare that the appellants, having allowed rent to remain unpaid had thereby incurred an irritancy of the lease; that the lease was at an end; and that the respondents were entitled to enter upon possession of the subjects. Second, they craved the court to ordain the appellants summarily to flit and remove themselves from the subjects. Third, they craved summary ejection in the event of the appellants failing to remove themselves therefrom. Fourth, they craved decree for the sum of rent said to remain unpaid. The action was defended.

[4] On 8 February 2008, the sheriff found that the defenders' and appellants' averments were irrelevant and lacking in specification; therefore in part he sustained the pursuers' and respondents' first plea-in-law, repelled the first to third pleas-in-law for the defenders and appellants and granted decree in terms of the pursuers' and respondents' craves one to four inclusive. On 22 February 2008, the sheriff sustained the pursuers' and respondents' sixth plea in law, repelled the defenders' and appellants' fourth plea-in-law and granted decree against the defenders and appellants for payment of the sum of money with interest specified in the interlocutor of that date. Against these interlocutors the appellants have appealed to this court.

[5] Among the several issues ventilated before the sheriff was the issue of the manner of service of the notice of 9 October 2007. The terms of that notice are to be seen at page 8.1 of the appendix in the appeal. In it, the respondents gave notice in terms of the lease and section 4 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, "the 1985 Act", that the appellants were required to pay the sum of money specified to the respondents within fourteen days of the effective date of service on them of the notice. It contained a warning that, if payment was not made as required, the lease might be terminated at the instance of the respondents. That notice was served by a sheriff officer upon the appellants on 9 October 2007 in the presence of a witness, all as narrated in the execution of service reproduced at page 8.2 of the appendix.

[6] At this point it is convenient to notice the terms of section 4 of the 1985 Act, which provides:

"4(1) A landlord shall not, for the purpose of treating a lease as terminated or terminating it, be entitled to rely -

(a) on a provision in the lease which purports to terminate it, or to enable him to terminate it, in the event of a failure of the tenant to pay rent, or to make any other payment, on or before the due date therefor or such later date or within such period as may be provided for in the lease; or

(b) on the fact that such a failure is, or is deemed by a provision of the lease to be, a material breach of contract,

unless subsection (2) or (5) below applies.

(2) This subsection applies if -

(a) The landlord has, at any time after the payment of rent or other payment mentioned in subsection (1) above has become due, served a notice on the tenant -

(i) requiring the tenant to make payment of the sum which he has failed to pay together with any interest thereon in terms of the lease within the period specified in the notice; and

(ii) stating that, if the tenant does not comply with the requirement mentioned in sub-paragraph (i) above, the lease may be terminated; and

(b) the tenant has not complied with that requirement.

(3) The period to be specified in any such notice shall be not less than -

(a) a period of 14 days immediately following the service of the notice; or

(b) if any period remaining between the service of the notice and the expiry of any time provided for in the lease or otherwise for the late payment of the sum which the tenant has failed to pay is greater than 14 days, that greater period.

(4) Any notice serviced under subsection (2) above shall be sent by recorded delivery and shall be sufficiently served if it is sent to the tenant's last business or residential address in the United Kingdom known to the landlord or to the last address in the United Kingdom provided to the landlord by the tenant for the purpose of such service. ...".

[7] Before the sheriff, among the points taken on behalf of the appellants was the contention that, since section 4(4) of the 1985 Act required that any notice served under subsection (2) had to be sent by "recorded delivery" and because the notice of 9 October 2007 had not been so sent, the procedure required by section 4(2) had not been carried through. It followed that the respondents had not been entitled to irritate the lease on account of failure to pay rent by means of the irritancy notice, dated 24 October 2007. On that basis, the respondents were not entitled to a decree in terms of craves one to three of the initial writ. The sheriff, for the reasons which he gives in paragraphs [1] to [20] of his judgment, rejected that contention. In paragraph [8], the sheriff concluded that the natural and ordinary meaning of "recorded delivery" would be a reference to the Post Office recorded delivery service; however, he considered that the absence of any express mention of the Post Office in section 4(4) of the 1985 Act admitted of the possibility of other varieties of delivery which involved formal recording, such as where service was executed by a sheriff officer, who issued a certificate of execution of service. In paragraph [20] of his judgment the sheriff stated that:

"Having formed the view that the primary natural or ordinary meaning of the expression 'recorded delivery' produces absurdity I consider that the purpose of the provision shows that the secondary sense should be given to the words; a delivery by any established method which involves the making of a formal record of that delivery".

He thus rejected this particular contention of the appellants. It should be explained that he also rejected certain other contentions advanced on their behalf.

[8] In the grounds of appeal to this court, the appellants set forth a range of criticisms of the sheriff's decision. However, when the case came before us, counsel for the appellants indicated that he intended to support only that part of the grounds of appeal that related to the argument focused upon the words "recorded delivery" in section 4(4) of the 1985 Act. Accordingly it is unnecessary to be further concerned with those other parts of the grounds of appeal, which were abandoned.

[9] The ground of appeal which was supported before us was in the following terms:

"More specifically, the learned sheriff erred in the following respects:

(a) So far as material to this action, section 4 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 ('the 1985 Act') provides that a landlord shall not be entitled to invoke a conventional irritancy clause allowing termination of a lease upon failure by the tenant to pay rent unless the landlord shall first have served upon the tenant a pre-irritancy notice in accordance with subsection 4(2);

(b) subsection 4 (4) of the 1985 Act states: (here the terms of the subsection were quoted).

(c) The Learned Sheriff erred in law in holding that a notice which had never been sent to the tenant by recorded delivery post was, nevertheless, capable of constituting a valid notice under section 4(4) of the 1985 Act. The Learned Sheriff should have held that:

(i) the term 'recorded delivery' in subsection 4(4) of the 1985 Act is a reference to the recorded delivery service provided by the Royal Mail under and in terms of section 28 of the Post Office Act, 1969 and the Post Office Inland Post Scheme of 1979 (and any relevant statutory re-enactment of those provisions from time to time);

(ii) the use of said service is a mandatory requirement if a notice under (sic) is to be treated as having being validly 'sent' by a landlord for the purposes of section 4(4) of the 1985 Act;

(iii) a notice sent to a tenant by a method other than by that recorded delivery service is not validly sent in terms of section 4(4); and accordingly

(iv) a notice purportedly 'sent' to a tenant only by Sheriff Officers did not comply with the terms of section 4(4) and was accordingly an invalid basis for subsequent termination of the lease pursuant to a conventional irritancy provision."

The submissions of the appellants

[10] Counsel for the appellants began by outlining the history of the proceedings. The appellants accepted that, as a matter of fact, they had been in breach of the lease between them and the respondents on account of the non-payment of rent. However, if the court were to favour the appellants' submissions, it would conclude that the purported irritancy of that lease would be invalid because of the provisions of section 4 of the 1985 Act, in particular, on account of the lack of a proper notice in terms of subsection 4(2). In this connection counsel drew our attention to the terms of clause 7.1 of the lease, which dealt with irritancy. The terms of the clause were said to be "Subject to the provisions of sections 4, 5 and 6 of the section 4 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985", as had to be the case. The appellants' simple proposition was that the pre-irritancy notice required by statue had to be served by recorded delivery post. The issue was, in essence, a technical one, since it was accepted that the appellants had in fact received the notice concerned. Attention was drawn to the submissions made before the sheriff in this connection, which appeared between pages 47 and 60 and 79 to 83 of the appeal print.

[11] Moving on to consider the terms of section 4(4) of the 1985 Act, counsel drew our attention to the Report of the Scottish Law Commission (No 75), dated February 1983, which recognised the need for reform of the law of irritancy following upon the decision of the House of Lords in Dorchester Studios (Glasgow) Limited v Stone and Another 1975 S.C. (H.L.) 56. In paragraph 4.3 of the Report, the Scottish Law Commission set out their recommendation in relation to pre-irritancy notices, saying that:

"We also recommend that notices should be served by recorded delivery, but that the notice procedure should not apply where the tenant has no address for service in the United Kingdom known to the landlord."

Annexed to that Report was a draft Bill. Clause 1(4) was in identical terms with those of section 4(4) of the 1985 Act; it contained the words: "...shall be sent by recorded delivery...". Counsel submitted that the expression "recorded delivery" was one with a commonly understood meaning. The meaning was the Royal Mail recorded delivery post service. What was notable was that, in the legislation, no alternatives to recorded delivery had been provided for. That was in contrast to certain other enactments in which alternatives were provided. The appellants' contention was supported by the provisions of the Recorded Delivery Service Act 1962, section 1(1) of which provided that the recorded delivery service was to be an alternative to registered post. While it might be thought that the appellants' submissions were of a highly technical nature, that did not detract from their force. In that connection, counsel relied upon Mannai Investment Company Limited v Eagle Star Life Assurance Company Limited [1997] 1 A.C. 749. At page 762, Lord Jauncey of Tullichettle observed that notices terminating a tenancy were technical documents because they were effective without the consent of the receiver; it was therefore essential that they conform to the statutory or contractual provisions under which they were given. Counsel also relied upon Robert M Greer and Another v Hartley Holiday Parks Limited 2009 W.L. 1063002, a decision of Sheriff Principal Lockhart. Reference was made particularly to paragraphs 4, 7, 8, 32 and 42. There was a paramount importance in compliance with the technical requirements of a notice intended to have unilateral effect.

[12] There might be reference made by counsel for the respondents to industrial action by postal workers at the time of the pre-irritancy notice, as a possible justification for the use of a sheriff officer instead of recorded delivery in this case. However, it had to be appreciated that all that was incumbent on the respondents in the circumstances was to send the requisite notice by recorded delivery; it was not incumbent on them to secure actual delivery of the notice. In any event, while there were averments about the industrial action, there was no suggestion that, at the material time, the Post Office was not accepting letters for its recorded delivery service. In connection with this submission counsel referred to Carmarthen Developments Limited v Samuel James Pennington [2008] CSOH 139.

[13] It was submitted that the 1985 Act had to be put in its historical context. At the time of its enactment, the monopoly of the Post Office had not been limited; that circumstance reinforced the contention that the words "recorded delivery" were a reference to the Post Office recorded delivery service.

[14] It was instructive to compare section 4(4) of the 1985 Act with other statutory provisions which imposed requirements for the service of documents. In that connection reference was made to Department of Agriculture for Scotland v George Goodfellow 1931 S.C. 556. That case was concerned with the operation of section 26 of the Agricultural Holdings (Scotland) Act 1923, which required written notices to be given of intention to bring a tenancy to an end. The manner of giving such notice was prescribed by rule 113 of the First Schedule to the Sheriff Courts (Scotland) Act 1907, which provided that removal notices "may be given" by a messenger-at-arms, or by a sheriff officer, or by registered letter. It was decided that a landlord was entitled to adopt any one of the three methods of giving notice there set forth, but had to adopt one or other of them. Thus a notice of intention to bring the tenancy to an end sent by unregistered letter was invalid. The provisions of rule 113 contrasted with those of section 4(4) of the 1985 Act, since, in the latter enactment, no alternatives were provided to recorded delivery. Thus strict compliance was required. Counsel went on to rely on Perth City Wall Limited v Smart Events Limited 2001 G.W.D.23-871, dated 29 June 2001. In paragraph [6], Temporary Judge Coutts, Q.C., emphasised the importance of strict compliance with contractual requirements where conventional irritancy was involved. C.I.N. Properties Limited v Dollar Land (Cumbernauld) Limited 1991 S.L.T. 341 was also of assistance. At pages 342 and 343 Lord Morton of Shuna dealt with the requirements of section 4(2) of the 1985 Act, although not with the issue of "recorded delivery". Ben Cleuch Estates Limited v Scottish Enterprise 2008 SC 252 made clear the importance of strict compliance with contractual provisions in connection with notices given under the provisions of a lease. Reference was made particularly to the observations of Lord Macfadyen in paragraphs [60] and [64].

[15] Summing up his position, counsel for the appellants submitted that clause 7.1 of the lease could not be clearer; it made reference to section 4 of the 1985 Act, which was, in any event, mandatory. The words "recorded delivery" had a specific and exclusive meaning. In taking the view that he had, the sheriff had erred in law. It was of interest to note that in clause 7.2 of the lease, a contractual provision concerned with contractual notices under the lease, it was provided that any notice to the tenant would be sufficiently served if "sent by recorded delivery post". If the word "post" had been included in section 4(4) of the 1985 Act, the respondents could not have argued what they did. However, in reality, the words "recorded delivery" were abundantly clear. The appeal should be allowed and the sheriff's interlocutors recalled to the extent that they granted decree in terms of craves one to three of the initial writ.

The submissions of the respondents

[16] Counsel for the respondents moved the court to refuse the appeal. He submitted that the sheriff had reached a correct conclusion. There was no dispute that, as at 24 October 2007, the date of the final notice of irritancy, the appellants owed the respondents a sum of money by way of rent somewhat in excess of £6,000. There was no dispute that, fourteen days before 24 October, on 9 October 2007, a notice was served on the appellants demanding payment of the rent claimed by the respondents to be due and expressly warning them that irritancy might follow, if payment were not made within fourteen days. It was not said that that notice was not in fact received by the appellants. It was not claimed by the appellants that they had been, in any way, misled by the terms of the notice served upon them. Against that background the appellants' defence to the first to third craves of the initial writ was entirely technical in nature. It was absurd to suggest that the notice of 9 October 2007 was invalid because it was delivered to the appellants by a sheriff officer, whereas it would have been valid if delivered to them by a postman making a recorded delivery.

[17] What section 4 of the 1985 Act required was that a "notice" should be sent "by recorded delivery". Since the enactment of the Recorded Delivery Service Act 1962, the appropriate statutory language to refer specifically to that particular service provided by the Post Office, whereby it recorded the delivery, or indeed non-delivery, of an item entrusted to it for that purpose, has been "the recorded delivery service", as appears from section 1(1) of that Act. Innumerable examples of the use of that entire phrase could be found in legislation of all kinds, including Acts of Sederunt and Acts of Adjournal. Evidently the full appropriate statutory reference to the Post Office recorded delivery service, for some reason, had not been used in section 4 of the 1985 Act.

[18] In order to succeed, the appellants required to convince the court that, in using the words "sent by recorded delivery", Parliament had intended to exclude as an acceptable method of delivery of the notice, the method in fact adopted by the respondents, namely, delivery by an officer of the court who recorded the fact of delivery by issuing a formal document of the kind habitually issued to record the delivery or service of documents of various kinds. The respondents accepted that, ordinarily, the most convenient and economic way of achieving the "recorded delivery" of a notice would be to use the Post Office recorded delivery service . However, it would be an error in reasoning to allow what happened as a matter of practicality in the ordinary case to come to represent the sum total of what was to be permitted to happen in any case.

[19] Some reference had been made to the terms of clause 7.2 of the lease, which contained the references to notices being sufficiently served if "sent by recorded delivery post". No submission relating to that clause had been made to the sheriff. It was submitted that this clause contained nothing significant or helpful in the context of the interpretation of section 4(4) of the 1985 Act.

[20] A proper approach where a provision was said to be of doubtful application to a particular set of facts had been succinctly stated by Lord Bingham of Cornhill in Regina (Quintavalle) v Secretary of State for Health [2003] 2 AC 687, at paragraphs 7 and 8; also by Lord Steyn at paragraph 21.

[21] Having regard to that approach the question that had to be asked was what was the mischief that section 4(4) of the 1985 Act had been designed to address. To furnish an answer to that question counsel relied upon the Scottish Law Commission Report (No 75), paragraphs 1.1, 2.9, 4.2, 4.3 and paragraph 3 on page 26 of the document. The enactment had been a sequel to the decision of the House of Lords in Dorchester Studios (Glasgow) Limited v Stone and Another. What had been intended was that a warning should be given to the tenant of the occurrence of an event which could trigger irritancy and affording to the tenant the opportunity to remedy a breach of his obligations. It was noteworthy that at no point in its Report did the Scottish Law Commission make any reference to the "recorded delivery service" or, indeed, to the Post Office at all. Counsel submitted that there was nothing in the legislative background that suggested that Parliament, in using the words that it had selected in the 1985 Act, must be taken to have intended that only the Post Office recorded delivery service could properly be used for delivery of the notice to which section 4 referred. Even if one proceeded upon the basis that the natural, primary or ordinary meaning of the words "recorded delivery" was to the Post Office recorded delivery service, it was necessary to go further. The questions posed by Lord Diplock in Kammins Ballrooms Company Limited v Zenith Investments (Torquay) Limited [1971] A.C. 850 should be asked. Translating those questions to reflect the circumstances of this case, the relevant questions were:

(a) What is the subject matter of section 4 of the 1985 Act?

(b) What object in relation to that subject-matter did Parliament intend to achieve?

(c) What part in the achievement of that object was intended to be played by the words "recorded delivery"?

(d) Would it be inconsistent with the achievement of that object if the words "recorded delivery" were held to include delivery by a sheriff officer recording that fact?

It was submitted that the respective answers which should be given to these questions were:

(a) The regulation of the circumstances in which leases might be irritated for monetary breaches;

(b) The requirement that formal warning be given of an impending liability to irritancy for a such a breach;

(c) The requirement that the landlord should be able to show clearly and indisputably that he did send a warning notice which would be distinguished in some way from the ordinary run of communications being received by the tenant; and

(d) In the negative; on the contrary, it would entirely support and uphold that object.

On the basis of this approach, the appeal should fail. It was submitted that all that section 4(4) of the 1985 Act sought to achieve was a record of a formal intimation of the relative notice. There was no question of judicial legislation involved here, simply the matter of the interpretation of a statutory provision about which different views might be held.

[22] Parliament, enacting section 4(4) of the 1985 Act, could easily have used words which would have made it quite clear that it intended that the only acceptable means of delivery of the notice contemplated by the enactment should be the Post Office recorded delivery service, as by using the phrase specifically employed in the Recorded Delivery Service Act 1962. Had that been done, the result would have been that the case would have fallen into the category described by Lord Reid in Kammins Ballrooms Company Limited v Zenith Investments (Torquay) Limited, at page 859C, and exemplified by cases such as Department of Agriculture for Scotland v Goodfellow. However, Parliament had not done so in this case. Those arguing for a more restrictive construction of the words than they themselves required had to justify that by reference to some applicable canon of construction. None appeared in this case. By contrast numerous such canons supported the construction adopted by the respondents. In this connection counsel relied upon Bennion on Statutory Interpretation, Fifth Edition, pages 943 to 944, 969, 971, 974, 979 and 980.

[23] It was submitted by counsel that it was the need to make the provisions of the 1985 Act operate in the particular circumstances of this case that had caused the respondents to use sheriff officers for delivery of the relevant notice in the first place. That was because, as the appellants admitted, at the time of the notice of 9 October 2007, there was industrial action amongst Post Office staff, with the result that deliveries of mail, including mail sent by the recorded delivery service, were delayed, as appeared from answer five in the appeal print at page 15. Thus the respondents had been on the horns of a dilemma. They could have consigned the notice to the recorded delivery service, but its delivery would have been delayed, thus shortening the period of time which would have been available to the appellants to make the payment due from them and to avoid a liability to irritancy of the lease. Although all that the statute required, at least if read literally, was for the notice in terms of section 4 of the 1985 Act to be sent, but not necessarily to arrive, that would have left the respondents open to the suggestion that they had been acting oppressively, a common law defence which survived the enactment of the 1985 Act, as appeared from C.I.N. Properties Limited v Dollar Land (Cumbernauld) Limited 1992 S.L.T. 211, per Lord Justice Clerk Ross at pages 213 to 214, Lord Mayfield at page 215 and Lord Caplan at page 216. Similarly, the respondents could not safely have sent a notice by the recorded delivery service and have arranged also for some alternative by another means of delivery, since that would probably have resulted in the appellants being presented with contradictory demands as to the time they had to pay, which could have invalidated the proposed irritancy because of the potentially confusing messages thus given to the tenant. In that connection reliance was placed on Ethel Austin Properties Holdings Limited v D & A Factors (Dundee) Limited (Kirkcaldy Sheriff Court, 21 June 2005; unreported). Counsel submitted that the respondents had been entitled to take some action towards irritation of the lease when they did. Parliament could not lightly be supposed to have intended that the entire operation of the law of irritancy of leases in Scotland should be dependent on the inclination of employees of the Post Office to attend, or not to attend, to their ordinary duties on any particular day or during any particular period. All of these considerations underlined the thoroughly impracticable results which would flow from the appellants' approach to the construction of the Act, with, it was submitted, no substantive countervailing considerations at all.

[24] It was a trite law to say that a truly mandatory provision of a contract had to be applied. If, in a contractual setting, parties stipulated clearly enough for some seemingly pointless form of process, then generally that form of process and no other was what was required, as appeared from the observations of Lord Hoffmann in Mannai Investment Company Limited v Eagle Star Life Assurance Company Limited, at page 776. However, the situation was different if the form of process in question had a basis in statute rather than in contract. That was the situation here. Where what had to be considered was the terms of a statutory provision, rather than a contract, broader considerations came into play, since statutory provision would apply generally, rather that particularly.

The decision

[25] In the circumstances of this case, in our opinion, it is important to identify the nature of the problem that has been presented to the court. It is clear that that problem is one of statutory interpretation, in particular, the interpretation of the language used in section 4(4) of the 1985 Act. It is equally important to identify what is not the problem which confronts the court. We are not faced with a need to interpret the provisions of the lease which the respondents sought to irritate. That realisation has two consequences. First, the language used in clause 7.2 of the lease, which refers to certain notices under the lease being sufficiently served, if sent by recorded delivery post, are of no particular assistance in the resolution of the problem which does confront us beyond perhaps reflecting the parties' own understanding of what section 4(4) required. Second, the observations of Lord Jauncey of Tullichettle and Lord Hoffmann in Mannai Investment Company Limited v Eaglestar Life Insurance Company Limited at pages 762 and 776 respectively are not directly relevant to the resolution of the problem, for the reason that those observations are focused upon a consideration of the adequacy of notices in a contractual context, not a statutory one. No doubt Lord Hoffmann's striking observations upon the necessary colour of paper on which a notice required by contract had to be inscribed, possesses force in the context of contractual conditions, but that is not what is involved here.

[26] However, that is not to say that the interpretation of statutory provisions relating to such matters is not to be undertaken in a rigorous manner. In the case of Department of Agriculture for Scotland v George Goodfellow, the issue was the manner of the giving of written notice in terms of section 26 of the Agricultural Holdings (Scotland) Act 1923. For the reasons there explained, it was concluded that rule 113 of the First Schedule to the Sheriff Courts (Scotland) Act 1907 governed the matter. It provided that removal notices "may be given" by a messenger at arms, or by a sheriff officer or by registered letter. While the court held that a landlord was entitled to adopt any one of the three methods of giving notice there set forth, he had to adopt one or other of them; accordingly a notice of intention to bring the tenancy to an end sent by an unregistered letter was invalid.

[27] Kammins Ballrooms Company Limited v Zenith Investments (Torquay) Limited furnishes useful guidance as to the matter of statutory interpretation. In this connection we refer to the observations of Lord Diplock at page 880. However, it is also important to note what was said by Lord Reid at page 859:

"If the words of an Act are so inflexible that they are incapable in any context of having any but one meaning, then the court must apply that meaning, no matter how unreasonable the result - it cannot insert other words. But such cases are rare because the English language is a flexible instrument".

[28] Ultimately the issue for us is to discern, from the language of section 4(4), what was the intention of Parliament enacting that provision. In that connection, we consider that we are entitled to have regard to the contents of the Report of the Scottish Law Commission (No 75) on the subject of irritancies in leases. We note that in paragraph 4.3 of the Report the Commission "recommend that notices should be served by recorded delivery...". The terms of clause 1(4) of the draft Bill annexed to the report, which was enacted as it stood, provided that the relevant notice "shall be sent by recorded delivery". While, in the Recorded Delivery Service Act 1962, section 1(1), Parliament used the expression "the recorded delivery service" in making provision for a lawful alternative to registered post, we are not persuaded that the absence of the word "service" in section 4(4) of the 1985 Act signifies that, in that latter provision, Parliament intended to refer to something different. In our opinion, since 1962 at least, the expression "recorded delivery" has come to be used as a reference to the recorded delivery service furnished by what is now the Royal Mail. We conclude that the words used in section 4(4) of the 1985 Act can only be read as a reference to that mechanism of communication. Following the observation of Lord Reid in Kammins Ballrooms Company Limited v Zenith Investments (Torquay) Limited, one might be driven to a different conclusion if the result of adopting the meaning just indicated was plainly unreasonable or, worse, absurd. However, we do not think that that is the case. It seems to us entirely comprehensible that the Scottish Law Commission, in formulating their recommendation, should have adopted what had become recognised as a cheap and reliable method of formal communication, in the context of the service of notices in connection with the irritancy of leases, a matter of commonplace occurrence, which could be undertaken by a layman without any difficulty.

[29] In reaching the conclusion that we have on the interpretation of the words "recorded delivery", we are further influenced by the statutory context in which they appear. It will be noted that section 4(4) employs the words "shall be sent by recorded delivery". In our view, the use of the words "...sent by ...." implies that the words "recorded delivery" connote a mechanism of service. Had Parliament intended that any means of service which resulted in the creation of a record of the fact of service was permissible, we consider that other language would have been used. It might have taken a variety of forms, but we do not consider that the words actually used would have been chosen to connote such a requirement.

[30] It appears to us that a major problem in the face of the interpretation urged upon us by counsel for the respondents was that, if the words "recorded delivery" were to mean simply a means of delivery of which a record had been made, that would lead to unsatisfactory results. While no doubt delivery effected by sheriff officers and formally witnessed could be taken to be a reliable indication of the fact of delivery, one might be faced with other situations where, for example, a person who was unlikely to offer reliable proof of anything might make a record of a delivery for which he had been made responsible. Plainly any court would be most reluctant to accept such material as that. Thus, if the words "recorded delivery" are not given the precise meaning, which we consider that they do bear, there would be difficulties in identifying the kind of compliance to which they might properly relate. The need to avoid repeated litigation in that context is, in our view, a powerful reason for favouring the submissions made by counsel for the appellants.

[31] Finally, much was made by counsel for the respondents of the reasons why, in the circumstances of this case, service of the notice of 9 October 2007 was decided to be effected by sheriff officers, that is to say the existence of industrial action in the Post Office at the material time. Counsel for the respondents characterised the situation as one in which the respondents were placed upon the horns of a dilemma. We consider that that dilemma was illusory. The respondents could have followed the course of sending the notice by recorded delivery and, at the same time, by other means, intimating to the appellants a copy of that notice, with an explanation as to the possibility that it might be received late. If that course had been followed, we do not understand how the confusion which was envisaged by counsel for the respondents could arise.

[32] In all these circumstances, we shall allow the appeal, recall the sheriff's interlocutor of 8 February 2008 to the extent that it finds that the appellants' averments are irrelevant and lacking in specification and therefore, in part, sustains the respondents' first plea-in-law, repels the first to third pleas-in-law for the appellants and grants decree in terms of the respondents' craves one, two and three inclusive; we shall sustain the appellants' first, second and third pleas-in-law to the extent that they relate to craves one to three inclusive. Decree of absolvitor will be granted in relation to those craves.