On 1 February 2023, the Court of Appeal handed down judgment in Mooney v Whiteland [2023] EWCA Civ 67; [2023] EGLR 15, another case concerning the validity of a statutory notice which, while seemingly clear in its intent, did not comply with the statutory requirements.
Facts
The facts of Mooney can be shortly stated. Victoria Whiteland had an assured tenancy, a weekly periodic tenancy that had begun on 20 May 1991, a Monday; her landlord was Christopher Mooney. Whiteland paid rent each Friday. Section 13 of the Housing Act 1988 allows a landlord of a periodic assured tenant to serve a notice increasing the rent due under the terms of the tenancy. If a tenant does not accept the increased rent, they can apply to the First-tier Tribunal (in England) or the Rent Assessment Committee (in Wales), which will set a market rent for the property. A section 13 notice must, inter alia, propose “a new rent to take effect at the beginning of a new period of the tenancy specified in the notice” (section 13(2) of the 1988 Act).
Whiteland’s rent fell due each Monday, that being the first day of each period of her tenancy. On 29 October 2018, Mooney served a section 13 notice, which expired on 7 December 2018 – a Friday. Whiteland considered that this notice was invalid and continued to pay the “old” rent, Mooney appears to have been sufficiently sure of his position to issue a claim for possession. Four years, five judges and two appeals later, it appears that Whiteland was right and Mooney was wrong.
Proceedings
The deputy district judge at first instance had held that the notice was valid on the basis that it would have been clear to the reasonable recipient that, in accordance with the practice between the parties, Whiteland was being required to pay the increased rent on the day she actually paid the rent (the DDJ relied on Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19; [1997] 1 EGLR 57).
On appeal, the case for Mooney was put differently – it was said that the reasonable recipient of the notice would have understood that Friday, 7 December was a mistake and that Monday, 10 December had been intended. The Court of Appeal disagreed and, partially in reliance on the prescribed information in a section 13 notice expressly referring to the start date of a period, held that a tenant faced with a section 13 notice is entitled to assume that, generally speaking, if the date put on the notice for the rent to take effect is not the first day of a period of the tenancy, then the notice is invalid and not to go on to consider whether the landlord might have made a mistake.
Conclusions drawn
There is a tendency, whenever there is a new case on notices, to attempt to put the case into either the “strict” or “permissive” camp. Rightly or wrongly, there is a perception among some practitioners that older cases tend towards requiring literal compliance (particularly those pre Osman v Natt [2014] EWCA Civ 1520; [2015] EGLR 11 that concerned what were then described as “mandatory” rather than “directory” requirements) and that the modern approach, to consider the purpose of a statutory provision then to consider whether a failure to comply with it invalidates a notice (see, for example, Elim Court RTM Co Ltd v Avon Freeholds Ltd [2017] EWCA Civ 89; [2017] PLSCS 46), is more flexible. The problem with that, probably false, dichotomy is that the modern approach still leaves open what compliance is if it is unclear from the face of the statute.
This category of dispute arises where a notice is “wrong” but might not be “too wrong” and with each new decision practitioners anxiously consider whether a dial is moving towards tolerance or rigour or, at least, whether a case might help persuade a judge that a notice is close enough to the statutory requirement.
So the ratio of Mooney is clearly going to be unhelpful to landlords who have got the dates in their section 13 notice wrong as, in most cases, it shuts down a Mannai-type reasonable recipient argument. But does Mooney suggest a stricter approach to compliance generally?
My feeling is that Mooney does not indicate a shift to a stricter approach. The Court of Appeal considered the notice element of the appeal entirely in Mannai terms. For a notice to be considered valid where, even though it does not on its face comply with the requirements of the contractual or statutory provision in question, it would nevertheless be understood as doing so by a reasonable recipient of the notice with knowledge of the background circumstances, there must be no reasonable doubt as to what the notice was intended to mean (Pease v Carter [2020] EWCA Civ 175; [2020] EGLR 15).
In this case, the Court of Appeal held that it was not clear what the notice was intended to mean (noting that Mooney’s alternative argument, that the period of the tenancy had changed so that the Friday date was correct, probably was not the most helpful to the reasonable recipient argument as Mooney was trying to argue at least two different interpretations of the notice on appeal). If this case moves the dial at all, it is by applying rather than distinguishing Pease, which represents the post-Mannai orthodox approach.
Richard Granby is a barrister at Tanfield Chambers
