SERVICE OF DOCUMENTS II: SERVING AT AN ADDRESS THAT HAD BEEN VACATED (AND OVERTURNING FINDINGS OF FACT)

In Grimes -v- The Trustees of the Essex Farmers and Union Hunt [2017] EWCA Civ 361 is another one of the batch of recent cases on service. The Court of Appeal considered the question of whether a document could be served at an address that the serving party knew had been vacated and where an alternative address had been given. It is an interesting decision both for its construction of the contract in relation to an address for service and the short passages that relate to the (unsuccessful) attempt to overturn findings of fact.

KEY POINTS

• A tenancy agreement could not be construed so as to allow service of documents at an address that had been vacated once the landlord had been given notice that there was a new address.
• The Court of Appeal would not readily overturn findings of fact by the trial judge where there was material before the judge and the decision was one that a reasonable judge could have reached.

THE CASE

The case related to whether a notice to quit an agricultural tenant had been validly served on the claimant.  The tenancy agreement contained a clause that stated

“Either party may serve any notice (including any notice in proceedings) on the other at the address given in the Particulars [at the beginning of the tenancy agreement] or such other address as has previously been notified in writing.”

SERVICE OF THE NOTICE

The defendant served the notice to quit in December 2011 at an address that the claimant had vacated six years previously.  The judge found that the defendant had been given written notice of the change of address in December 2006. The trial judge found that this was good notice. This decision was overturned by the Court of Appeal.

THE JUDGMENT IN THE COURT OF APPEAL

1. 1. There can be no doubt that a notice to quit, or any other notice contemplated by the tenancy agreement, could have been validly served on Mr Grimes at his Glebe Way address at any time before he notified the Trustees of another address under clause 14.2, even though he no longer lived there. Furthermore, that would have been the position even if Mr Clarke knew that Mr Grimes no longer lived there. One evident purpose of specifying an address in the Particulars is to provide an address for service under clause 14.2, and if the tenant then moves from that address without notifying the Trustees of his new address, he must clearly be taken to accept the risk that notices served at the specified address will not come to his attention. The question is, however, whether that continues to be the position once the tenant has notified the Trustees in writing of a new address. Is it then still open to the Trustees to serve a notice on the tenant at his old address, as shown in the Particulars, even though they have been duly notified of his new address?

   2. To my mind, that would be a surprising conclusion to have to reach, particularly in the context of a contractual relationship that was intended to last for at least six years. What is the point of enabling the tenant to notify the landlord of his new address, it may well be asked, if the landlord remains free to serve notices on the tenant at the address given in the Particulars? Surely, as a matter of commercial common sense, the parties must have intended that the new address, once duly notified, should supersede the original one shown in the Particulars. Otherwise, the situation would be reached where an unscrupulous landlord, in full knowledge of the tenant’s actual current address, could continue to send notices to the tenant’s original address years after he had moved from it, and long after any normal arrangements for the forwarding of mail or other documents addressed to him there would have expired. I would therefore be disposed, if the language of clause 14.2 permits it, to construe the provision as substitutive in its effect. Or in other words, once the tenant has given written notice of a new address under the clause, that new address then replaces the original one shown in the Particulars (or any previous replacement address notified to the Trustees, as the case may be).

   3. In my judgment, there is no difficulty in construing clause 14.2 in this way. The normal meaning of the word “or” is disjunctive, although in a suitable context it can be read as equivalent to “and”, or as expressing a non-exclusionary alternative equivalent to “and/or”: see, for example, Federal Steam Navigation Co Ltd v Department of Trade and Industry [1974] 1 WLR 505 (HL) at 522B-E (per Lord Wilberforce) and 523E-H (per Lord Salmon). As a matter of ordinary language, therefore, it is natural to begin with a rebuttable presumption that clause 14.2 provides for service either at the address given in the Particulars or at such other address as has previously been notified in writing, but not at both. Furthermore, I can find nothing in the context to support the notion that “or” was here intended by the parties to mean “and” or “and/or”.

   4. On the footing that the two modes of service are true alternatives, the next question is whether the party serving the notice was intended to have a choice between them, or whether notification of a new address was intended to replace the address given in the Particulars. For the reasons which I have already given, the answer to this question seems to me to be obvious. The parties cannot sensibly have intended that the serving party should continue to have the option of serving at the old address once he has been notified of the new one. That is to say, the parties must have intended that the new address should be a substitute for its predecessor, and not that it should offer a choice which did not exist before notification of the new address.

   5. Another way of making the same point is to say that the disjunctive language of clause 14.2 envisages only a single address for service: either the address given in the Particulars, or (instead) such other address as has previously been notified in writing. To construe the clause in this way does not in my view involve reading anything into it, and is indeed the natural and ordinary meaning of the language used. In particular, the use of the word “other” before “address” in the second limb of the clause is a strong indication that the new address is intended to replace that shown in the Particulars.

   6. In reaching the contrary conclusion, the judge thought that “the literal meaning” of the words used in clause 14.2 was clear, and that good service could be effected “either at the address stated in the lease or at the other address that has since been notified to the other party”: see the judgment at paragraph 3.7. The judge recognised that “this process would be capable of abuse”, but it was “not unworkable or impracticable”: it would always be open to the other party (here the tenant) to make “appropriate arrangements for forwarding”.

   7. The judge then said that it would have been a simple matter to draft the clause in terms which clearly provided for substitution of the later address for the earlier one, and continued:

“What is not permissible in my firm conclusion is to take a clause which on its face says clearly that the lease address is a good address for service and interpret it as meaning that in some circumstances that address is not good for service, that it has ceased to be good for service. That would be going beyond the proper limits of an exercise of construction and going into the forbidden territory of re-writing a contract in different, perhaps fairer, terms. That is not a permissible exercise except where the alternative interpretation is a commercial absurdity, which for the reasons I have stated I do not consider to be the position here.”

1. Despite the confidence with which the judge reached his conclusion, I can only say that in my respectful opinion he was wrong. His error lay, I think, in starting with what he perceived to be the literal meaning of the words used, whereas the authorities are clear that the relevant wording has to be considered in the context of the contract as a whole, and is not (as Lord Hodge said in Wood v Capita Insurance Services Ltd at [10], quoted above) “a literalist exercise focused solely on a parsing of the wording of the particular clause”. If the judge had approached the question in this way, he would I think have realised that the language can naturally be read as providing for an alternative which is not only exclusionary but also substitutive; and that, viewed objectively, this is what the parties must have intended.

2. In any event, for the reasons which I have given I am satisfied that the judge came to the wrong conclusion on this point. It follows that Mr Grimes’ appeal must be allowed, unless the Trustees can succeed in overturning the judge’s finding of fact that the December 2006 notice of his new address was duly given to them. That is the issue raised by the respondent’s notice, to which I now turn.

OVERTURNING THE JUDGE’S FINDING OF FACT

The defendant attempted to persuade the Court of Appeal that the trial judge had been wrong to find that notice of change of address had been given.  The defendant’s efforts came to naught.

THE COURT OF APPEAL JUDGMENT ON THE JUDGE’S FINDINGS OF FACT

“Was the December 2006 notice of Mr Grimes’ new address duly given to the Trustees?

1. 1. The judge dealt with this issue in paragraph 4.1 of his judgment, as follows:

“My conclusion on this issue is that on the balance of probabilities (which applies to all the findings that I am about to make) Yes it was. I do not consider it likely that this is a document which was later forged by Mr Grimes. That would be a very serious allegation requiring clear evidence before the court could be persuaded … that it was true. Nothing has been said to me against Mr Grimes’ character and I have no reason to suppose that he is a man who would do such a thing. On the basis that it is authentic, in other words that it was written at the time and for the purpose that it states on its face, it was written to accompany a cheque, which it appears was definitely received. It is therefore likely that the note went with the cheque. The note is scribbled and informal. It may easily have been overlooked by Mr Clarke at the time, or filed by him and then lost and not thought about for five years before this file was revisited. Therefore, although I accept Mr Clarke’s evidence that he has no recollection of receiving it, I do not accept his further more positive assertion that he can be sure or confident that in fact he did not receive it. It appears to me, without in any sense doubting his good faith, that at that point he has gone beyond memory into informed speculation and that that consideration, though a weighty one, is not sufficient to overcome the other circumstances I have listed. Therefore, I conclude that the change of address notice was received by the landlord.”

1. 1. In their supplemental skeleton argument, counsel for the Trustees do not shrink from submitting that this conclusion was one which there was no evidence to support. They have to put their case that high, in order to bring it within the very limited circumstances in which an appellate court may legitimately differ from a finding of fact made by the trial judge. The relevant principles have been restated by the Supreme Court, the Privy Council and the Court of Appeal in a series of recent cases, to which it is unnecessary to refer as there is no dispute about them. It is enough to say that an appeal court should not interfere with the trial judge’s conclusions on an issue of primary fact unless it is satisfied that the trial judge was “plainly wrong”. The meaning of that test was usefully elucidated by Lord Reed in Henderson v Foxworth Investments Ltd [2014] UKSC 41, [2014] 1 WLR 2600, where he said at [62]:

“There is a risk that it may be misunderstood. The adverb “plainly” does not refer to the degree of confidence felt by the appellate court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.”

See too Beacon Insurance Co Ltd v Maharaj Bookstores Ltd [2014] UKPC 21, [2014] 4 All ER 418, at [12] per Lord Hodge.

1. 1. In his witness statement, immediately after the passage which I have quoted at [15] above, Mr Grimes said:

“In December 2006, I sent Mr Clarke my rent cheque and under that confirmed my new address and landline number.”

This was a reference to the undated handwritten note, the terms of which I have set out at [14]. Mr Grimes was cross-examined about the circumstances in which the note came to be prepared, and we have been provided with a transcript of his evidence. It transpired that he did not write the note himself, but his wife did. He then signed it. Similarly, it was his wife who would have written the cheque, although he would have signed it. He did not recall when the note was written, or when it was sent. Nor could he remember whether it was he or his wife who had put the note in the envelope with the rent cheque, or who had posted it. Indeed, he thought it was possible that the note did not accompany the cheque. Furthermore, despite the date on the note, Mr Grimes said that he always paid his cheques in January for October, November and December. His explanation for the date on the note was that his wife would “most probably have done the cheques in December, the end of December”.

1. Mrs Grimes did not give evidence to corroborate her husband’s version of events. There was no suggestion that she was unable to give evidence.

2. In the light of this material, and the clear evidence of Mr Clarke that he never received any notification of the change of address from Mr Grimes, the Trustees submit that it was simply not open to the judge to make the findings which he did in paragraph 4.1 of his judgment. In my opinion, however, the submission is a hopeless one. There was clearly ample circumstantial evidence which entitled the judge to conclude, on the balance of probabilities, that the written note did indeed accompany the rent cheque, which was admittedly received and banked by the Trustees. There was nothing inherently incredible about Mr Grimes’ account of the circumstances in which the cheque and the note were prepared and sent to Mr Clarke in early January 2007, and his inability to remember points of detail was not surprising more than eight and a half years later. Moreover, as the judge recognised, the informal nature of the note meant that it could easily have been overlooked by Mr Clarke at the time, and his recollection that he never received it may for that reason have been mistaken. The absence of corroborating evidence from Mrs Grimes was no doubt a matter for the judge to take into account, but was by no means conclusive: the judge had before him the written and oral evidence of the two protagonists, Mr Grimes and Mr Clarke, and he had the benefit of seeing and hearing them in the witness box. Those are advantages which this court cannot replicate, and even a transcript of the relevant evidence is only part of the overall picture.

3. In short, I have no hesitation in concluding that the judge’s finding on this issue was open to him on the evidence, and is not one with which an appellate court can interfere.”