OPINION

June Thomas (Applicant) v Dumfries and Galloway Housing Partnership Limited (Respondent)

[1] By sec 1 of the Housing (Scotland) Act 2014 the right of a secure tenant under the Housing (Scotland) Act 1987 (“the 1987 Act”) to buy his home was abolished with effect from 1 August 2016. Eleven days before that the applicant, Ms June Thomas, posted an application for the purchase of her home at 18 Broomlands Drive, Dumfries, to her landlords, Dumfries and Galloway Housing Partnership Ltd (“DGHP”), from the Post Office at Whitesands, Dumfries. The crux of this case, which involves both an application for a finding under sec 68(4) of the 1987 Act that she has a right to purchase her home and one for a finding in terms of sec 71(1)(a) that the landlord has failed to serve a timeous offer to sell, is whether the application got to the landlords in time to beat that deadline, or, indeed, at all. We heard the application at Dumfries Sheriff Court on 16 November 2017, when the applicant was represented by Mr Matthew Pumphrey of Messrs Primrose & Gordon WS, Dumfries, and the respondents by Ms Rhona Wark of BTO, solicitors, Glasgow.

Legislation

Housing (Scotland) Act 1987

“Secure tenant’s right to purchase

61 (1) Notwithstanding anything contained in any agreement, a tenant of a house to which this section applies (or such one or more of joint tenants as my be agreed between them) shall, subject to this Part, have the right to purchase the house at a price fixed under section 62.

Application to purchase and offer to sell

63 (1) A tenant who seeks to exercise a right to purchase a house under section 61 shall serve on the landlord a notice (referred to in this Part as an “application to purchase”) which shall be in such form as the Secretary of State shall by order made by statutory instrument prescribe …

Service of notices

84 (1) A notice or other document which requires to be served on a person under any provision of this Part may be given to him –

(a) by delivering it to him;

(b) by leaving it at his proper address; or

(c) by sending it by recorded delivery post to him at that address.”

Interpretation Act 1978

“References to service by post

7 Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”

Cases

Calladine-Smith v Saveorder Ltd [2011] EWHC 2501 (Ch)
Chiswell v Griffon Land and Estates Ltd [1975] 1 WLR 1181
Duffy v Normand 1995 SLT 1264
E K v City of Edinburgh Council LTS/TR/2016/30 27 September 2017
Kemp v Wanklyn [1894] 1 QB 583
Lex Service plc v Johns [1990] 1EGLR 92
Maltglade Ltd v St Albans Rural District Council [1972] 1 WLR 1230
Moody v Godstone Rural District Council [1966] 1 WLR 1085
R v County of London Quarter Sessions Appeals Committee ex parte Rossi [1956] 1 QB 682
Webber (C A) Transport Ltd v Railtrack plc [2004] 1 WLR 320

Witnesses

[2] The applicant gave evidence on her own behalf and also led the evidence of her daughter Eleanor. For the respondents Mrs Marion Elizabeth Jane Rowland and Mrs Avril Anne Hamilton gave evidence. We found all of the witnesses credible and reliable.

The evidence

The applicant

[3] The applicant gave evidence that she had posted her application as aforesaid. She had used the Royal Mail’s “Signed For 1st” service. She could have hand delivered it to the respondents’ Nith Street office, which was only some 300 yards from the Sands Post Office but she had chosen to post it instead, possibly because she had other business at the Post Office that day. She identified production A2 as the relevant receipt. Although the Nith Street office was close by, she had addressed the package to the respondents’ head office which is at Grierson House, The Crichton, Bankend Road, in the town. She knew the right to buy was coming to an end but she also knew that it was likely to take some weeks for the respondents to respond to her application; the application form told her as much. However, no word having been received by mid-August, her daughter had made enquiries on her behalf from which it had emerged that the respondents were denying ever having received the application. She had posted the application using the foresaid service in confidence that the Royal Mail would do its job and if the form had got lost she thought that was more likely to have been in the respondents’ office than in the mail. She acknowledged that R5 included a screenshot from the Royal Mail’s “Track and Trace” website which said that “information on your Royal Mail Signed For item is not yet available”.

Eleanor Rowan Thomas (39)

[4] Miss Thomas gave evidence that around the time with which we are concerned she was living in Glasgow but in the habit of visiting her mother in Dumfries from time to time. She had known her mother had applied to buy her house and during one such visit asked her if she had heard anything back. Nothing having been heard she had phoned the respondents, probably in the last week of August, and spoken to Marion Rowland, who had denied having received an application from her mother and asked Miss Thomas to check that it had been posted. She had then posted a copy of the application form to Mrs Rowland under cover of a letter, a copy of which is production R1. That letter is undated but is date-stamped 14 September by the respondents.

[5] Miss Thomas had also phoned the Post Office who had told her that the package had not been signed for, that the “Signed For” service was the modern equivalent of the old recorded delivery service and that, under it, delivery was not guaranteed. She had checked online whether the package had been delivered but all it said was that it had not been signed for. From her own anecdotal experience mail which ought to be signed for by the addressee was sometimes simply put through the letterbox with the rest of the mail. That could have happened in this case.

[6] There had been a later telephone call to Marion Rowland, probably in November, when she was asked whether her mother had received a letter dated 2 November 2016 from the respondents’ solicitors. That letter not having been received a copy was sent out, by the solicitors, on 5 January (production A5), which copy was received. It said that since there was no evidence that the application had been received by their clients before 1 August it could not be treated as having been received timeously and, regrettably, the right to buy had therefore been lost.

[7] When the witness had telephoned the Royal Mail they had told her that most items sent under the “Signed For” service were delivered in the normal course of post but had not said what was done with those which were not. Whatever had happened to it, the form had never been returned to her mother.

Avril Anne Hamilton (57)

[8] Mrs Hamilton had been receptionist at The Crichton (as Grierson House tended to be referred to in the evidence), since 2014, presently working on a job-share basis, starting at 9 a.m. and finishing at 1 p.m. She described the system for handling incoming mail. It was date-stamped with the date of receipt, entered onto a computerised log and placed in the in-tray for the appropriate member of staff. The postman usually arrived between 11 a.m. and 12 noon, he usually had any signed-for mail at the top of his pile and he would stand on the other side of the reception desk while she signed the electronic terminal. The office was closed on a Saturday and that day’s mail would be put through the letter-box by the postman to await the first arrival at work on Monday morning, who would place it on the witness’s desk. She understood there was an agreement in place that “Signed For” mail would not be delivered on a Saturday. She had never failed to sign for mail which ought to be signed for.

[9] She identified R3 as a copy of the Excel Spreadsheet on which mail received in the period from 21 July to 1 August, inclusive, had been entered. It shows, in three columns, the sender, the subject-matter and the person to whom the item had been passed.

[10] Mrs Hamilton explained that DGHP had three branch offices in addition to the Head Office, where she worked. These also operated a date-stamping system but mail which had to go to Head Office would be taken there by a delivery system operated by Dumfries & Galloway Council. When it arrived at HQ it wold be date-stamped there as well.

[11] She was not aware of any mail having gone missing within Grierson House although she had on occasion been asked to check the mail log to see whether or when something had been received.

[12] She was unsure as to whether she had been on holiday in July of last year. Any mail arriving after she finished her day’s work, at 1 p.m., would be dealt with by her Job Share but that was a very rare occurrence.

Marion Elizabeth Jane Rowland (42)

[13] Mrs Rowland has worked for the respondents for 14 years. Last year she had been working as a legal assistant dealing with right-to-buy applications. Only she dealt with such applications and she had been doing so for seven years before the right was terminated. She had no record or recollection of having received one from the applicant but recollected and substantially confirmed the content of her discussions with Eleanor Thomas.

[14] All right-to-buy applications were entered on a Housing Management System. A lot of applications had been coming in last July; whereas previously she had been handling about 100 a year, about that number had come in in July 2016 alone. As with the rest of her mail, they would arrive at the reception desk, be date-stamped there and put in her tray from which she would collect them. Right-to-buy applications received at one of DGHP’s local offices would be date-stamped there and treated as received by DGHP on that date, albeit they had to be forward to her at The Crichton, to be dealt with. Some applications had been sent to Dumfries & Galloway Council in error and the Council had forwarded them to her. She had asked Eleanor Thomas about that possibility but that was clearly not what had happened in this case.

[15] As well as the date-stamping process she knew that mail was entered on a mail log on receipt. She knew of mail having gone to the wrong person within the office but not of mail having been lost internally. The 1st of August 2016 had been a Monday. She had not been on holiday in the lead-up to that. Any right-to-buy applications sent to a local office or mis-directed to someone else within Grierson House would have been forwarded to her because she was the only person in the organisation who dealt with them. Whilst there was always scope for human error – which applied to the Royal Mail as well as to DGHP staff – she had never known a right-to-buy application to be lost in the seven years she had been dealing with them.

Submissions

For the applicant

[16] This was a very narrow point to do with the interpretation of sec 84 of the 1987 Act. The case of EK v The City of Edinburgh Council, to which the tribunal had referred parties, was very much in point. If we were satisfied, as, on the evidence, we should be, that Ms Thomas had addressed and posted the application in the manner spoken to, the only question was whether sec 7 of the Interpretation 1978 gave the respondents a “let-out”. In EK the Tribunal had held that sec 7 applied and would have allowed the applicant in that case to prove that she had not received the notice of refusal, had the Tribunal believed her.

[17] In Mr Pumphrey’s submission it was not enough to suggest that the document had gone astray; it had to be proved that it had not been delivered. Had it been returned to Ms Thomas, that would have been proof of non-delivery. There was no such proof here. What we had here was a person who had in good faith used one of the permitted modes of service. Although no evidence had been led on the matter, it was within judicial knowledge – and the Tribunal in EK had accepted – that the vast majority of mail was safely and correctly delivered by postal staff. If it was the respondents’ case that this application had gone missing in the post they ought to have led a witness from the Royal Mail to speak to that possibility. In that situation the onus on them had not been discharged.

[18] It had to be remembered that July 2016 had been a very busy time for Mrs Rowland and for the office generally, with 100 applications coming in in a single month, so it was possible that this one had gone astray internally, missed by the log and by Mrs Rowland.

[19] As to the law, in addition to EK, Mr Pumphrey referred to R v London County Quarter Session Appeals Commission ex parte Rossi and Kemp v Wanklyn both of which, he submitted, suggested that proof in the sense of something unchallengeable was required to displace the statutory presumption.

For the respondents

[20] Ms Wark stressed the robust system the respondents had for logging-in mail and distributing it internally. It was extremely unlikely that three people had made a mistake: (i) the postman in failing to get a signature, (ii) Mrs Hamilton in not logging the document in, and (iii) Mrs Rowland in not receiving it and dealing with it. One had to look at all the circumstances; Calladine-Smith v Saveorder Ltd, cited in the Tribunal’s decision in EK. Both Mrs Hamilton and Mrs Rowland had given their evidence clearly and directly. On a balance of probability we should hold that the document had not been received and dismiss the application.

Tribunal’s consideration

[21] In the case of EK v City of Edinburgh Council the Tribunal (Mr R Smith QC and Mr A Oswald) held that sec 7 of the Interpretation Act 1978 applies to sec 84 of the 1987 Act. The Tribunal also reviewed a range of authorities on sec 7. Those authorities show the section to be divided into two parts, the first dealing with the posting of the notice and the second with the presumption as to its delivery. As to the first part, at para 25 of his judgement in Calladine-Smith v Saveorder Ltd Morgan J said this:

“The first part of Section 7 imposes the burden of proof on the sender of the letter not the addressee of the letter. It requires the sender to prove that the sender has properly addressed, prepaid and posted the letter. If the sender cannot do that, then the sender cannot rely on Section 7.”

[22] In the present case the proof of posting receipt discloses that a package was posted at the Whitesands, Dumfries, Post Office at 13.52 on 20 July 2016 (a Wednesday) using the Royal Mail’s “Signed For 1st Class” service, which, according to the receipt, “aims to deliver your letter the next working day”. In terms of the addressee, all it confirms is that the package was addressed to DGHP at the postcode DG1 4ZS but it is not disputed that DGHP are the initials by which the respondents are known and it is admitted that the postcode is that of their Head Office at Grierson House. There is no suggestion that the applicant would have any reason to be posting anything other than the application to buy her home to the respondents at that time. Accordingly we hold that the applicant has discharged the burden on her to prove that the document was posted as averred

[23] Turning to the second part of sec 7, the first question is whether it is engaged at all. Although Mr Pumphrey did not raise it, the question cannot be avoided because of dicta in some of the cases to the effect that where there is no statutory specification of a particular date or event before which the notice must be served the second part of sec 7 does not apply. Thus we have Parker LJ in R v County of London Quarter Sessions Appeals Committee ex parte Rossi, discussing the similarly worded statutory predecessor of sec 7, being sec 26 of the Interpretation Act 1889, saying:

“The section, it will be seen, is in two parts. The first part provides that the dispatch of the notice or other documents, in the manner laid down, shall be deemed to be service thereof. The second part provides that unless the contrary is proved that service is effected on the day when in the ordinary course of post the document would be delivered. This second part, therefore, concerning delivery as it does, comes into play and only comes into play in a case where under the legislation to which the section is being applied the document has to be received by a certain time. If in such a case “the contrary is proved”, i.e. that the document was not received by that time or at all, then the position appears to be that though under the first part of the section the document is deemed to have been served, it has been proved that it was not served in time.”

[24] In Moody v Godstone Rural District Council, an English Court of Appeal decision on the service of an enforcement notice under the Town and Country Planning Act 1962, a distinction was drawn by James J between two types of case:

“This court was also referred to Beer v Davies,where the last-mentioned case was followed, and also Layton v Shires. Both these cases were cases concerning notices of intended prosecution under s. 21 of the Road Traffic Act, 1930. The other case to which we were referred of Hosier v Goodall, was under similar provisions of the Road Traffic Act, 1960. All were cases where clearly the purpose of the notice was to bring to the attention of the person being served the matter of intended prosecution at a point of time proximate to the alleged offence, very similar considerations to that applicable in the Rossi case. Receipt by such a person in that type of case is an essential element. For my part, I do not consider that the same feature is present in this case, and I think with great respect to Mr Joesph’s [counsel for the appellant] careful argument there is a flaw in it in this way, that I do not consider one is entitled to look, as he has to look, to a step some distance ahead, namely, the time at which the information is laid, or perhaps more accurately the time at which the offence is alleged to have been committed, and to work backwards from there and say on that basis that time is an essential element where notice is served under s. 45 of the Town and Country Planning Act, 1962. I think you have to look at the event of the serving of the enforcement notice and at that point of time. At that point of time there is no vital element that the enforcement notice has to be served by or at a particular date in question, and it would not matter whether this notice had been served on the first day of the month in which it was dated, or had been left in the office and served a week later or ten days later; any point of time would have done. Thus this type of case is distinguishable. The second limb of s. 26 of the Interpretation Act, 1889, therefore, cannot be invoked in this case, and, in my judgment, the adducing of evidence of the posting of this notice by prepaid registered post addressed to the defendant … was sufficient to prove, by virtue of s. 214(1)(c) of the Town and Planning Act, 1962, service of the enforcement notice upon the defendant.”

Of that decision, Lord Justice General Hope in Duffy v Normand (a case involving the service of a report on an accused person under sec 26(4) of the Criminal Justice (Scotland) Act 1980), said this (obiter at page 1267B-C):

“The effect of that decision is that, in a case where proof of service on a particular date is immaterial, evidence of non-receipt will be irrelevant, as it can be assumed in terms of the first part of s 7 of the 1978 Act that service has been effected. But there are other cases, of which Maltglade v St Albans Rural District Council is an example, where it has been held that where the legislation requires the document to be served by a certain time, the second part of s 7 comes into play and it is open to the alleged recipient to say that he did not receive the document at all.”

[25] Maltglade involved the service on a company of a building preservation order under the Town and Country Planning Act 1968. The building in question was demolished shortly after the purported service of the notice resulting in a charge of having executed works not authorised under Part V of the 1968 Act. The company appealed its conviction on the basis that the notice had not been served, in that it had not been received by them, before the demolition was carried out. With some reluctance Lord Widgery CJ, with whom Shaw J and Wien J agreed, concluded:

“In my judgment this is a case in which one should regard the notice in question as being one which had to be received by a certain time. True it had not to be received by a particular date on the calendar but its effectiveness depended on it being received before the bulldozers came in, and the actual demolition began. It seems to me, although I confess I find the authorities somewhat unsatisfactory, and the conclusion is not wholly logical, that we should follow Rossi in this case, and say that it was open to the alleged recipients of this notice to say that they had not been served in time, and once that door is opened, it is permissible for them to say that in truth the notices were never served at all.”

We respectfully agree with his Lordship’s view of the authorities on this point. Why sec 7 cannot simply be regarded as setting up a rebuttable presumption of service in all cases, irrespective of the purpose of the notice, is not clear to us. Nevertheless, since the authorities seem to recognise this distinction (although not conclusively so in Scotland, in terms of the obiter passage from Duffy v Normand quoted above) it requires us to recognise it.

[26] Like Maltglade, this is not a case in which the 1987 Act specified a date or event before which a notice under sec 63(1) must be served. Nevertheless, the abolition of the right-to-buy as aforesaid brought about a situation in which time became of the essence. The respondents were not obliged – indeed they were possibly forbidden – to give effect to such a notice unless received before 1 August 2016. Accordingly we hold that it is open to the respondents to prove that they did not receive the applicant’s notice before that date.

[27] That being so, the next question becomes to what standard they must prove it. For that we return to Morgan J in Calladine-Smith, where, in relation to the second part of sec 7, his Lordship said this (at para 26):

“[T]he question is: is an addressee of the letter required only to show on the balance of probabilities that the letter was not delivered or served or received by him, or does the burden on the addressee go further? Is it a requirement to lead positive evidence as to what happened to the letter? Is there a burden on him to show that the sender of the letter was aware that the letter had not been delivered or served or received? In the absence of authority and basing oneself on the statutory language alone, it seems to me quite clear that the reference to something being proved in this context is a reference to something being proved on the balance of probability. Accordingly, if the addressee of the letter proves on the balance of probability that the letter was not served upon him then that matter has been proved and the section should be applied accordingly. Of course it is not enough simply to assert that someone did not receive the letter; the court will consider all the evidence and make its findings by reference to the facts which are established including issues as to the credibility of witnesses.”

At that point in his judgment his Lordship was reasoning from first principles but he went on to review the earlier English authorities on the point (Chiswell v Griffon, Webber v Railtrack, both disapproving Lex Service plc v Johns), before concluding (at para 33)

“Accordingly, my interpretation of Section 7 when it uses the phrase ‘unless the contrary is proved’, is that this requires a court to make findings of fact on the balance of probabilities on all of the evidence before it. That is what the Judge did here. She held that the counter-notice had not been received by the Claimant. That means that the contrary of the deeming provision was indeed proved.”

[28] In the present case, despite the unfortunate (to say the least) conclusion to which it leads for the applicant, we have had little hesitation in concluding that, on a balance of probability, the respondents have proved that Ms Thomas’s application was never received. We say that for the following reasons:

Firstly, the very evidence which the “Signed For” service is designed to provide – evidence of delivery – is not available. Instead we have only the screenshot dated 20 October 2016 (part of production R5) saying, enigmatically, “Information on your Royal Maid Signed For item is not yet available”. No evidence has been led from the Royal Mail as to why that should be. If the package was delivered to Grierson House it was not signed for, so the postman must have failed in what was, presumably, his duty to get a signature. That, of course, is possible but Mrs Hamilton gave evidence that she always signed for mail that should be signed for and had never known such an item of mail to be accepted without a signature.

Secondly, Mrs Hamilton, who struck us as a responsible, efficient employee who took her responsibilities seriously, spoke of a robust system of mail recording which required her to date-stamp all mail received, except things like invoices, and enter it on a computer log showing when it was received, who it was from, what it was about and to whom it was directed. A printout was produced spanning the period between 20 July and 1 August and there is no trace of receipt of the application, whereas receipt of the copy sent in by Eleanor Thomas is shown for the later date of 14 September.

Thirdly, Mrs Rowland, who impressed us as someone in the same mould as Mrs Hamilton, gave evidence that she had never received the form and that she had never known one to be lost within the office.

Fourthly, and cumulatively from the above, it would require the postman, Mrs Hamilton and Mrs Rowland to have in some way failed in their duties - the postman by not having it signed for, Mrs Hamilton by not entering it on her log and Mrs Rowland for having lost it, if it reached her – for this item of mail to have been received but subsequently got lost at Grierson House. We heard no evidence of how big the respondents’ office there is or how many people work there and so on but there is no basis in the evidence for concluding that it was even received at Grierson house.

Fifthly, whilst no evidence has been led from the Royal Mail as to what happened to this package on its short distance from one part of Dumfries to another, it is known that things get lost in the post; the existence of the proviso to sec 7 acknowledges that. In the context of this case, where the Signed For service was bought and paid for, the Royal Mail’s inability to produce a signature is almost tantamount to an admission that the item has never been delivered.

Decision

[29] For the foregoing reasons, therefore, we hold, on a balance of probability, that Ms Thomas’s application was not received by the respondents before (or since) 1 August 2016, that her sec 63(1) notice has therefore not been served on the respondents timeously and that this application, in both its forms, falls to be dismissed. The result is that she has lost her right to buy her home despite having done all she should have needed to do to lodge her application timeously.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 13 December 2017

Neil M Tainsh – Clerk to the Tribunal