UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2015] UKUT 301 (LC)

UTLC Case Number: RA/29/2014 & RA/31/2014

 

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

 

RATING – procedure – service of completion notice – whether completion notice addressed only to “the owner” valid – whether delivery of completion notice to premises followed by onward transmission of electronic copy by receptionist without authority to accept service was good service by the billing authority – s.42 and Sched. 4A, Local Government Finance Act 1988 – appeal allowed

 

IN THE MATTER OF AN APPEAL AGAINST AN APPEAL

OF THE VALUATION TRIBUNAL FOR ENGLAND

 

BETWEEN:

 

WESTMINSTER CITY COUNCIL

Appellant

and

 

(1)    UKI (KINGSWAY) LIMITED

(2)    MR M DUNLEVEY (VO)

Respondents

 

 

Re: Floors 3-6,

1 Kingsway,

London WC2B 6AN

 

Before: Martin Rodger QC, Deputy President

Sitting at: Royal Courts of Justice, Strand, London WC2A 2LL

on

9 March 2015

 

Sebastian Kokelaar, instructed by Head of Legal and Democratic Services, City of Westminster, for the appellant

Daniel Kolinsky QC, instructed by Jones Lang LaSalle for the respondents

 

© CROWN COPYRIGHT 2015

The following cases are referred to in this decision:

English Cities Fund (General Partners) v Grace [2013] RA 215

Friends Life Co Ltd v Alexander (VO) [2012] RA 263

Galinski v McHugh [1989] 1 EGLR 109

Metis Apartments Ltd v Grace (2014) VTE Appeal No.442022493928/257N10

Tadema Holdings Ltd v Ferguson (2000) 32 HLR 866

Townsend Carriers v Pfizer (1977) 33 P. & C.R. 361

Introduction

1.              This appeal concerns the formal validity and service of a completion notice under Schedule 4A of the Local Government Finance Act 1988 delivered by the appellant on 5 March 2012 in respect of premises on the 3 ^rd-6 ^th floors of a building at 1 Kingsway, London WC2. The completion notice purported to bring the premises into the 2010 rating list with effect from 1 June 2012. By a decision of the Valuation Tribunal for England given by its President, Professor Graham Zellick QC on 15 April 2014, the completion notice was found both to have been defective and not to have been validly served. As a result the premises were removed from the 2010 rating list. The appellant, which is the billing authority for the premises now appeals against the decision.

2.              As the President observed generally in relation to completion notices in paragraph 2 of his decision:

“The notice thus has considerably importance for the building’s owner and significant sums of money may be involved once non-domestic rates are imposed. It is not therefore surprising that ratepayers raise challenges to the formalities as regards validity of the document and the effectiveness in law of its service.”

This appeal illustrates both types of challenge.

The Facts

3.              The relevant facts are not in dispute and I summarise them as follows.

4.              UKI (Kingsway) Limited, the first respondent, owns the freehold of the building standing at 1 Kingsway. In January 2009 it commenced a redevelopment of the building behind the original facade. On completion the redeveloped building included 130,000 sq ft of office space.

5.              In anticipation of the completion of the building discussion took place between Jones Lang Lasalle (“JLL”), the rating agents acting on behalf of the first respondent, and the appellant, acting in its capacity as the billing authority, concerning the service of a completion notice to fix the date on which the building, including the Premises, would be brought into the 2010 rating list. The parties did not agree on the appropriate date and on 23 February 2012 the appellant informed JLL that it intended to serve a completion notice in respect of the premises specifying a completion date of 1 June 2012. The appellant asked JLL to confirm the identity of the owner of the building but JLL declined to do so without first obtaining instructions from its client, which were not forthcoming.

6.              On 5 March 2012 a completion notice specifying 1 June 2012 as the completion date was delivered by hand to the building, where it was given to a receptionist employed by Eco FM, the facilities management company responsible for managing the building on behalf of the first respondent. The completion notice was addressed to the “Owner, 1 Kingsway, London WC2B 6AN”.

7.              Neither Eco FM nor its receptionist had any authority to accept the service of legal documents on behalf of the first respondent.

8.              The receptionist scanned the completion notice and transmitted it electronically to the first respondent. It is not known precisely when this occurred but there is no doubt that the completion notice had been received by the first respondent by this means not later than 12 March 2012, a week after it was delivered to the building.

9.              On 29 March 2012 JLL lodged an appeal against the completion notice contending, amongst other things, that it did not comply with the statutory requirements for such a notice and that it had not been validly served. When, on 7 May 2013, the Premises were brought into the list with a rateable value of £2,750,000 with effect from 5 March 2012 (subsequently corrected to 1 June 2012) JLL submitted a proposal on behalf of the first respondent that the entry be deleted on the grounds, amongst others, that the completion notice had been invalid. The proposal was not accepted and was transmitted by the second respondent to the Valuation Tribunal for determination on appeal. The appeals against the completion notice and against the inclusion of the premises in the list were subsequently consolidated and heard by the President of the Valuation Tribunal on 10 March 2014.

10.          As the President subsequently pointed out in his decision, the appellant could at that stage have mitigated any further risk by accepting that the completion notice was or might be invalid and by issuing a new one. In what might be seen as a high risk strategy the appellant chose instead to rely only on the original completion notice served in the manner I have described. I was told at the hearing of the appeal before me that even then, three years after the sufficiency of the completion notice had first been challenged, and almost a year after the President’s decision, no further completion notice had yet been served. It seems quite likely that the whole of this interesting but arcane dispute would have been avoided if the appellant had taken that elementary step in March 2012.

11.          Only two issues were raised by the first respondent at the hearing of the appeals by the Valuation Tribunal: first, it alleged that the completion notice was invalid because it was not addressed to the first respondent by name, and secondly, it said that the completion notice had not been validly served.

The relevant statutory provisions

12.          By section 42 of the Local Government Finance Act 1988 (“the 1988 Act”) each non-domestic hereditament must be shown on the local non-domestic rating list maintained by the valuation officer for each billing authority. The expression “hereditament” is defined by section 64(1) of the 1988 Act by reference to its meaning under section 115(1) of the General Rate Act 1967, namely:

“Hereditament means property which is or may be liable to a rate, being a unit of property which is, or would fall to be, shown as a separate item in the valuation list.”

13.          The question whether a unit of property falls to be shown as a separate item in the valuation list is answered in the case of a newly-constructed building which has not yet been occupied by section 46A and Schedule 4A of the 1988 Act. When it comes to the notice of a billing authority that the work remaining to be done on a new building in its area is such that the building can reasonably be expected to be completed within 3 months, the authority is required by paragraph 1(1) of Schedule 4A to serve a notice on the owner of the building, referred to as a completion notice, as soon as is reasonably practicable. A billing authority may also serve a completion notice on the owner of a building which it considers has already been completed (para 1(2)). In each case the function of the completion notice is to identify a completion date for the new building, which will either be a date not more than 3 months from the date of service of the notice by which the building can reasonably be expected to be completed (para 2(2)) or, in the case of a building that has already been completed, will be the date of the notice itself (para 2(3)).

14.          Where a completion notice is served, section 46A of the 1988 Act has the effect (subject to any appeal) that the new building is deemed to have been completed on the date specified in the notice. The statutory deeming has effect for the purpose of section 42 of the 1988 Act so that from the specified date the building is a hereditament which must be shown in the rating list, even if the building is not in fact completed on that date.

15.          The person on whom a completion notice is served has the right to appeal against it on the grounds that the building has not been completed, or cannot reasonably be expected to be completed by the date stated in the notice (para 4(1) of Schedule 4A).

16.          A completion notice is required by paragraph 2 of Schedule 4A to specify the building to which it relates and to state the day which the authority proposes as the completion date in relation to the building. No other matters are referred to in paragraph 2 as information or particulars required to be included in a completion notice.

17.          Paragraph 8 of Schedule 4A is concerned with the service of completion notices. It provides as follows:

“Without prejudice to any other mode of service, a completion notice may be served on a person –

(a) by sending it in a pre-paid registered letter, or by the recorded delivery service, addressed to that person at his usual or last known place of abode or, in a case where an address for service has been given by that person, at that address;

(b)     in the case of an incorporated company or body, by delivering it to the secretary or clerk of the company or body at their registered or principal office or sending it as a pre-paid registered letter or by the recorded delivery service addressed to the secretary or clerk of the company or body at that office; or

(c)     where the name or address of that person cannot be ascertained after reasonable enquiry, by addressing it to him by the description of “owner” of the building (describing it) to which the notice relates and by affixing it to some conspicuous part of the building.”

The President’s decision

18.          In paragraphs 17 to 25 of his decision the President of the Valuation Tribunal considered the formal validity of the completion notice. Referring to paragraph 1(2) of Schedule 4A to the 1988 Act the President pointed out that there was no mention of the identity or address of the owner as being a necessary component of a completion notice. He noted that in a number of previous decisions of his own he had expressed or assumed the correctness of the proposition that failure to specify the name of the correct legal owner in a completion notice renders the notice invalid. Having now had the benefit of full argument on that issue he was nonetheless satisfied that those previous decisions did not correctly state the effect of the statutory procedure. In paragraph 22 of his decision the President explained that the assumption that a completion notice could not be valid if it did not refer to the intended recipient by name failed to distinguish between three distinct matters, namely, (a) what must be stated in the notice, (b) on whom the notice must be served and (c) how the notice is to be served. He went on:

“The only mitigation for this confusion is that it arises at the point that validity elides into service and, although omission of the name on the [completion notice] itself does not give rise to invalidity, its omission entirely at the point of service may prove fatal to that step, as I explain in the next section, so that the outcome is in substance identical. In other words, the correct name goes to the question of service, not validity.”

19.          The President was uncomfortable about this conclusion and hoped that the statute might be amended to require a statement of the owner’s name to be included in a completion notice. He emphasised to billing authorities that good practice dictated that the owner’s name and address be included on an important document of this kind even if the statutory scheme did not strictly require it.

20.          In the following section of his decision, at paragraphs 30 to 37, the President nonetheless determined that the absence of the owner’s name anywhere on the completion notice or the envelope in which it was delivered was fatal to the effective service of the document. Having referred to paragraph 8 of Schedule 4A he explained at paragraph 31:

“The only situation in which the billing authority is absolved from the obligation to state the owner’s name is when it is availing itself, and is able to avail itself, of sub-para (c) of para 8. That clearly posits an exception to the general rule and allows the use of the generic term “the Owner”.”

21.          The President feared that endorsement of the practice adopted by the billing authority in this case would generate difficulties, delays, disputes and litigation. At paragraph 34 of his decision he expressed his concerns in fundamental terms:

“To allow a notice of this kind, which nowhere indicates the person or body whom it affects and who will be taxed in consequence of it, to be capable of valid service would be offensive to principle and unconscionable.”

For those reasons, the President concluded “that the failure to identify the owner by name but to use instead the term “the Owner” is fatal to the claim of effective service.”

The issues on the appeal

22.          Neither party was wholly satisfied with the President’s decision. The appellant agreed with the President’s conclusion on the formal validity of the completion notice, but challenged his reasoning on the question of service. The respondent took the opposite approach (the Valuation Officer did not participate in the appeal).

23.          The issues for consideration on this appeal are therefore the same as those considered by the President, namely:

(1)    whether a completion notice is invalid if it fails to state the name of the intended recipient (where it is not suggested that that name could not be ascertained after reasonable enquiry); and

(2)    whether the completion notice delivered to the building on 5 March 2012 addressed to the Owner was validly served.

Issue 1: the form of the completion notice

24.          Mr Daniel Kolinsky QC, who appeared for the respondent, submitted that the President had been wrong to conclude that the completion notice was formally valid.

25.          Mr Kolinsky began his submissions by drawing attention to two features of the completion notice regime. First, he said that the service of a valid completion notice creates a deemed state of affairs, contrary to the interest of the ratepayer. In other words, it enables the billing authority to collect a rate on the assumed basis that a building is capable of beneficial occupation when, in reality, it may not be. Secondly, he pointed out that the periods of time involved in the completion notice regime were short: a notice could not be served more than 3 months before the anticipated date of completion of the building, and the right of appeal must be exercised within 28 days. These features, Mr Kolinsky submitted, meant that there was a need for certainty as to when effective service of a completion notice occurred.

26.          Reviewing the facts, Mr Kolinsky emphasised that the appellant had not taken steps which were available to it to ascertain the identity of the owner of the building. It did not exercise its power under section 16 of the Local Government (Miscellaneous Provisions) Act 1976 to require the provision of the information. It did not take heed of the Land Register or of the section 106 agreement to which it was party, nor even of the subject header of 14 e-mails which had passed between the parties’ agents. It had not been suggested that the appellant failed to ascertain the identity of the owner after making reasonable enquiries. That was important, Mr Kolinsky submitted, because it excluded reliance by the appellant on paragraph 8(c) of Schedule 4A to the 1988 Act.

27.          For a completion notice to be valid, it was necessary that it identify the owner of the building and intended recipient unless the facts were within the exceptional circumstances contemplated in paragraph 8(c) of schedule 4A. Mr Kolinsky gave four reasons in support of this submission:

28.          First, reading paragraphs 1, 2, 8 and 10 of Schedule 4A together it was clear that the statutory scheme contemplated that the completion notice would be addressed to the owner.

29.          Secondly, it was necessary to make the scheme work that a completion notice be addressed to the intended recipient by name, and not merely by reference to its capacity as “Owner”, and therefore a requirement to that effect had to be implied.

30.          Thirdly, Mr Kolinsky referred to four decisions of the Valuation Tribunal which he submitted were correct in holding that a completion notice was required to be served on the owner, namely: Prudential Assurance v VO [2011] RA 490 at paragraph 10; Friends Life Co Ltd v Alexander (VO) [2012] RA 263 at paragraph 10; English Cities Fund (General Partners) v Grace [2013] RA 215 at paragraph 5; and Metis Apartments Ltd v Grace (2014) at paragraph 19.

31.          Fourthly, paragraph 8 provided a number of methods of service of a completion notice. Sub-paragraphs (a) and (b) plainly assume the identification of the owner. Sub-paragraph (c), which assumed that the name or address of the owner could not be ascertained, was intended as a last resort. The making of “reasonable inquiries” was a necessary precondition before that method could be adopted, and no reliance could be placed on sub-paragraph (c) where those enquiries had not been made.

32.          I do not find any of these arguments convincing, and I agree with the President’s conclusion that the notice was not formally defective. It is necessary to consider only two questions in order to determine whether the notice is valid. First, what does the statute require to be stated in a completion notice, and secondly, does the document relied on in this case satisfy those requirements? If the second question is answered affirmatively, the notice is valid, whether or not it was understood by the recipient or anyone else. As Mr Sebastian Kokelaar, who appeared for the appellant, submitted, the statutory requirements for a valid completion notice are described in paragraph 2(1) of Schedule 4A and were satisfied in this case. The building to which the notice related was specified in the notice, which also stated the day which the appellant proposed should be the completion day in relation to the building. No form of completion notice is prescribed and no other information is required to be given. The completion notice was accordingly valid.

33.          Mr Kolinsky is obviously correct in his submission that the statutory provisions, and in particular paragraph 8, are drafted in anticipation that a completion notice will be addressed to the intended recipient, in the same way as any formal document or notice is likely to be. But that expectation is not made a requirement by paragraph 2(1), and in any event, the completion notice was addressed to the owner of the building, although not by name. The identification of the intended recipient of a formal document by reference to a status or capacity is not an uncommon technique and, as sub-paragraph 8(c) demonstrates, the adoption of that technique is not inconsistent with the purpose of a completion notice. After all, any person into whose hands the completion notice comes will know whether they are the owner of the building and the intended recipient of the notice. Contrary to Mr Kolinsky’s submission, therefore, it is not necessary to the operation of the scheme that the intended recipient be identified by name rather than by status.

34.          As the President of the Valuation Tribunal acknowledged, in none of the previous decisions relied on by Mr Kolinsky had the need for a completion notice to be bear the name of the intended recipient been a subject of dispute. Those decisions assume the correctness of the proposition for which they were relied on by Mr Kolinsky, but they provide no positive support for it.

35.          Finally, Mr Kolinsky’s fourth submission, that a valid notice may only be addressed to “the owner” if reasonable enquiries have been made and the identity of the owner cannot be ascertained, is based on a misconception as to the purpose of sub-paragraph 8 of Schedule 4A, which is concerned only with permissible modes of service, and not with the form of a completion notice. The modes of service described in paragraph 8 are not mandatory but are permissive and any other method of service which brings the completion notice into the hands of the owner will be sufficient. That is clear from the opening words of the paragraph (“Without prejudice to any other mode of service …”). Paragraph 8 performs a similar function to section 23(1) of the Landlord and Tenant Act 1927, which was explained by the Court of Appeal in Galinski v McHugh [1989] 1 EGLR 109 (a case relied on by Mr Kokelaar). If good service of a completion notice is admitted, the mode of service which was adopted will be irrelevant, but if there is a dispute over service paragraph 8 performs an important function. If any one of the three modes of service identified in paragraph 8 is adopted, the giver of the notice will be able to rely on the notice without the need to prove that it came to the attention of the intended recipient. The risk of non-receipt passes to the intended recipient on proof that a permitted mode of service has been employed. If none of those permitted modes of service is adopted, the risk of non-receipt will remain with the giver of the notice, and if service of the notice is disputed it will be for the giver to prove. The making of reasonable enquiries is a necessary precondition to reliance on sub-paragraph 8(c) to prove service of a completion notice addressed only to “the owner”, but the sub-paragraph does not introduce a further requirement as to the form of the notice itself and does not prohibit the service of a notice addressed only to “the owner” .

36.          I am therefore satisfied that the completion notice delivered to the building on 5 March 2012 was a valid completion notice, despite the fact that it did not identify the intended recipient by name. I would stress, however, in full agreement with the President, that the form of notice employed in this case is not a precedent which can be recommended. It has been the cause of very great expense and effort which could easily have been avoided if a more conventional approach had been taken.

37.          Even where building owners or their agents indulge in the sort of gamesmanship apparently resorted to in this case, it ought not to be difficult to establish the name and address of the owner by making an inquiry at the Land Registry or making use of the right conferred by section 16 of the Local Government (Miscellaneous Provisions) Act 1976 to require the provision of the information. That provisions enables a local authority to require the occupier of any land, or any person having an interest in the land, or who is authorised to manage it, to inform the authority of their own interest and of the name and address of every person whom they believe to be the occupier, the owner of an interest in, or the manager of the land. Such a notice may be given by a local authority with a view to performing any function conferred on it by any enactment. Failure to comply is a criminal offence.

Issue 2: Was the completion notice validly served?

38.          Paragraph 1(1) of Schedule 4A to the 1988 Act imposed a duty on the appellant to “serve a notice under this paragraph on the owner of the building”. In Tadema Holdings Ltd v Ferguson (2000) 32 HLR 866, to which Mr Kokelaar referred, Peter Gibson LJ considered the meaning of the word “serve” in section 8(1) and section 13(2), Housing Act 1988 in the context of the service on a person lacking mental capacity of a notice of increase of rent and a notice of intention to seek possession. At page 873 he said this:

“I do not think it can be said that the meaning of that word is different in relation to service on a patient from that which it would have in relation to service on a person of full capacity, “Serve” is an ordinary English word connoting the delivery of a document to a particular person. It does not seem to me to imply that the document has to be understood by the person to whom it is delivered. It does not have to be read by the person to whom it is delivered. Indeed it may not even be known to have been delivered to that person if it is delivered to the proper address for service.”

39.          The purpose of the completion notice in this case was to inform the owner of the appellant’s belief that the building could reasonably be expected to be completed within the time specified in the notice so that, if the owner disagreed with that assessment, it could exercise its right of appeal under paragraph 4. In this case the steps taken by the appellant (coupled with the actions of an employee of the owner’s agent) brought the notice to the attention of the owner. The owner did disagree with the appellant’s assessment (or at least with the procedure it had adopted) and did exercise its right of appeal. Nevertheless the President found that the notice had not been validly served. Why not?

40.          In paragraph 31 of the decision (see paragraph 17 above) the President explained that although the completion notice was not required to state the owner’s name, a failure to state the name where the requirements of sub-paragraph 8(c) were not satisfied was fatal. At this point that the President does seem to have accepted Mr Kolinsky’s submission that sub-paragraph (c) demonstrated the existence of a general rule which could only be departed from if reasonable enquiries had been made and had failed to establish the name and address of the owner. Thus in concluding his decision, at paragraph 53, the President said:

“A [completion notice] does not need to contain the name and address of the owner of the building to which it relates and the [completion notice] in respect of 1 Kingsway is accordingly valid. However, the name and address must appear somewhere if service of the notice is to comply with the statutory requirement that it must be “serve[d] … on the owner and thus constitute effective service, unless that information cannot be ascertained by reasonable inquiry and the procedure in para. 8(c) of Sched. 4A is utilised.”

41.          For the reasons given in paragraph 32 above I respectfully disagree with this approach. Sub-paragraph 8(c) is a permissive provision concerning service, which does not create an additional requirement, absent from paragraph 2, as to the form which a completion notice must take and the information it must convey. It does no more than permit service by a particular method in specified circumstances. The notice in this case was valid in form, as the President found, and it did not become invalid because of the mode of service adopted. Whether that mode of service was effective or ineffective did not depend on the content of the document itself, but on whether it was delivered in such a way as to come into the hands of the intended recipient.

42.          In paragraph 38 of the decision the President considered Tadema Holdings and found it of no assistance to the appellant because:

“The [completion notice] here was never delivered to the owner. It was delivered to the receptionist at 1 Kingsway who was not even employed by the owner. The original of the document never reached the owner, only an electronic copy did; and who is to say into whose hands it might then fall even if forwarded? Intended recipients are, in my view, entitled to receive the original of any formal notice (unless there has been an expression of willingness to accept electronic service)…”

43.          The President went on in paragraph 40 specifically to reject the submission that a completion notice could be served by any method whatever provided it reached its ultimate destination. In the context of a requirement for the service of a statutory notice the appropriate model was the normal rules concerning service in civil procedure and analogous situations:

“Parliament would have used words much more explicit and specific if its intention were to remove “service” of a [completion notice] so far outside the accepted methods of service in relation to civil proceedings and cognate matters (see e.g. Part 6 of the Civil Procedure Rules and the statutory provisions referred to [i.e. section 233, Local Government Act 1972 and s. 1139(1), Companies Act 2006].”

44.          The President concluded that delivery of the completion notice to the receptionist at the building was not service of the notice. I agree because, as is agreed between the parties, the receptionist was not an agent of the respondent for the purpose of receiving legal documents at the building on its behalf. The receptionist’s employer was a facilities management company and neither it nor its employees had actual (or ostensible) authority from the respondent to receive such documents. Had such authority been vested in the company or its employee the handing over of the completion notice into their custody would have been good service, but clearly it was not. Nevertheless, as Mr Kokelaar pointed out, the receipt of the document by the receptionist was only one step in its passage into the hands of the respondent where, it is also agreed, it had arrived in electronic form by 12 March 2012 at the latest. For the purpose of this appeal, whatever had been argued before the President, the appellant did not rely on delivery of the document to the building itself, but on its subsequent onward transmission to the respondent.

45.          The President considered that the arrival of the document in electronic form in the hands of the respondent was not service for the purpose of paragraph 1(1) of Schedule 4A and did not convert the defective service at the building into good service. His essential reasoning was that, as a matter of construction of the statutory scheme, and bearing in mind the purpose and consequences of a completion notice, the duty imposed on the billing authority by paragraph 1(1) of Schedule 4A to “serve” the notice on the owner required a “regularity, clarity and certainty” in the process of delivery of the document which was wholly missing in this case. As I have already mentioned in paragraph 39 above, the President considered that the intended recipient of a completion notice is entitled to receive the original of the document, and the receipt of an electronic version, scanned and sent by e-mail by the receptionist, was not sufficient unless the recipient had indicated that they were willing to receive it in that form. This view was supported by reasons of policy, powerfully expressed in paragraph 48 of the decision, and briefly encapsulated in paragraph 49 as follows:

“I do not think that defective service is capable of being cured. The consideration that carries the greatest weight with me is the imperative to impose on billing authorities the inescapable duty to exercise these powers with regularity, clarity and certainty and to sanction procedures that undermine all these desiderata cannot be in the public interest or the interests of justice.”

46.          Mr Kokelaar argued that the uncertainty and adverse consequences foreseen by the President were exaggerated. I do not agree. Doubt over the effectiveness of the service of a completion notice calls into question the liability of a hereditament to an assessment for rates. As this case illustrates, substantial sums of money are at stake and the uncertainty over the liability of a ratepayer created by the adoption of informal approach to the service of completion notices cannot have been the intention of Parliament. A practice note issued by the Department of the Environment in 1995, to which Mr Kolinsky referred, emphasised the consequences of a failure properly to serve a completion notice: “incorrect service can often remain unchallenged for months, meaning service of new notices after the original completion date”. In addressing Mr Kokelaar’s submission that where the 1988 Act requires a document to be served all that matters is whether the document eventually reaches the hands of the intended recipient, I agree with the President that it is relevant to have regard both to the purpose of the document as fixing a liability to pay a rate, the consequences of doubt over whether service has been successfully achieved, and the ready availability of reliable methods of service which paragraph 8 of Schedule 4A of the 1988 Act and section 233 of the Local Government Act 1972 permit. What I find more difficult to accept is that, in a case where the vital information has successfully been imparted to the person who needs to receive it, and that person has acted on it by exercising the right of appeal, the need for discipline and regularity in the exercise of the statutory power should be sufficiently powerful considerations to require that the recipient’s liability be determined on the basis that the information had never been received.

47.          As Peter Gibson LJ said in Tadema Holdings the word “serve” is an ordinary English word which connotes the delivery of a document to a particular person. Paragraph 1(1) of Schedule 4A places the obligation to serve a completion notice on the billing authority, and it is therefore the billing authority which must make the required delivery. As paragraph 8 recognises, a billing authority may make use of methods which provide a strong prospect of safe delivery, such as registered post or recorded delivery, and may obviously employ the services of an agent. But paragraph 8 is permissive and expressly stated to be “without prejudice to any other mode of service”. If the mode of service selected by the billing authority achieves its objective I find it very difficult to see why the public interest or the interests of justice to which the President referred should render service legally effective in some cases but ineffective in others. In my judgment a document which arrives in the hands of the intended recipient by an unorthodox route has still been served and I do not agree with the President that the dicta of Sir Robert Megarry V.-C. in Townsend Carriers v Pfizer (1977) 33 P. & C.R. 361 on which Mr Kokelaar relied is not in point. It was there argued that a requirement to “give” a contractual notice was satisfied only if the notice was given by the landlord, but that was not accepted and the possibility of indirect delivery was approved: “If the notice emanates from the giver and reaches the ultimate recipient, I do not think it matters if it has passed through more hands that one in transit”. The person to whom the notice was given in that case was found to be the general agent of the landlord, and its associated company, so both the language and context were different. It is true that this case is concerned with “service” by a billing authority, not the giving of a notice by a party to a private contract. Nevertheless, in the absence of some specific restriction on modes of service in the statutory scheme, I do not accept that a different approach is required.

48.          The method of service adopted in this case did not involve the delivery of the completion notice by the appellant or its agent to the respondent or any agent of the respondent authorised to accept service. The notice was not, however, handed to a complete stranger or to a third party with no relevant connection to the intended recipient. It is not clear exactly to whom the receptionist sent the notice (in electronic form) after it arrived in the building, but it was presumably either to the respondent itself or to an agent of the respondent. In doing so he or she was doing no more than one would expect of a responsible employee of a company engaged to manage the building. If the company secretary of the respondent had attended the building on the day of delivery of the completion notice and enquired of the receptionist whether anything had been delivered for the owner of the building, it cannot seriously be suggested that service would not have been successfully achieved at the moment the receptionist handed over the completion notice. I do not accept that onward transmission to the intended destination by one or more stages prevents the eventually receipt from being equally effective.

49.          It is finally necessary to consider whether the fact that the completion notice was transmitted to the respondent in electronic form by the receptionist is fatal to service. In circumstances where there is no dispute that the electronic copy was received I can see no justification for distinguishing between notices in different forms.

50.          In respectful disagreement with the President’s decision I therefore consider that the relevant sequence of events did not come to an end when the completion notice was handed to the receptionist, and that it is not at that point that it must be considered whether service has taken place. Service took place when the electronic copy of the document arrived in the hands of the respondent not later than 12 March 2012.

51.          For these reasons the billing authority’s appeal is allowed. In making this decision I should not be taken to condone sloppy procedure in the addressing or delivery of completion notices or any other important document.

 

 

Martin Rodger

Deputy President

28 July 2015