Freetown v Assethold Ltd [2012] EWCA Civ 1657 is a case relating to the effect of the notice serving provisions of the Party Wall etc Act 1996 to be found in section 15 of that Act.
Freetown had lodged an appeal against an award of a surveyor under the Act. The time limit for appealing an award is strict: there is a 14 day period “beginning with the day on which an award… is served”, with no power for any extension of time. If the date of service of the award was the date of its posting, Freetown was out of time; if instead it was the date of its arrival, Freetown’s appeal could be heard. The High Court decision aligned the notice serving provisions of the Party Wall etc Act 1996 with section 23 of the Landlord and Tenant Act 1927 in deeming service to be effected at the point at which a notice is consigned to the post. Freetown was therefore out of time. However, the Court of Appeal disagreed. The language of section 15 did not exclude the operation of section 7 of the Interpretation Act 1978, which deems service to be effected “at the time at which the letter would be delivered in the ordinary course of post”. Hence, the appeal was in time.
However, perhaps the greater significance of this case is its casting of a slight element of doubt regarding rules of service under section 23 LTA 1954 (and therefore rules of service under the 1927 Act, the 1954 Act and the 1995 Act). Whatever Rix LJ says regarding section 23 must be considered as obiter, but he comments that “jurisprudence [in relation to section 23] has developed in large part without consideration of section 7 [of the Interpretation Act 1978], even if ultimately in Webber [C A Webber (Transport) Ltd v Railtrack plc [2004] 1 WLR 320] the inference was drawn that section 7 was excluded.” He suggests that, in C A Webber (Transport) Ltd v Railtrack plc, the Court of Appeal assumed it was bound by earlier authority (Galinski v McHugh [1988] 57 P&CR 359), which authority had not clearly decided that section 7 of the Interpretation Act 1978 was excluded by the language of section 23 LTA 1927.
Now, since the Webber case is at the heart of the rule of service under the 1954 Act that if you post a section 25 notice by recorded delivery, it is deemed served at the point of posting, and not when it would be delivered in the ordinary course of post, this is a rather important doubt to raise. He says [46] “I have also been struck at how the section 23 jurisprudence has not proceeded so much by reference to section 7 of the Interpretation Act and its exclusion, as by reference to the construction of section 23 on its own terms. Thus in Webber this court reasoned that it was bound by this court’s decision in Galinski, but Galinski did not consider section 7. In such circumstances, I do not consider that it would be appropriate to extend the reasoning applicable to section 23 of the LTA 1927 into a different statute, with different wording, by reference to which it cannot be said that section 7 is excluded on the basis that “the contrary intention appears”.” Rix LJ declines therefore to use section 23 jurisprudence to interpret section 15 since he is not wholly sure about the correctness of that jurisprudence.