Khan v D’Aubigny [2025] EWCA Civ 11
Understanding Section 7 of the Interpretation Act 1978
Service of documents remains a key battleground in residential possession proceedings. In Khan v D’Aubigny [2025] EWCA Civ 11, the Court of Appeal considered for the first time the scope of section 7 of the Interpretation Act 1978 (‘IA 1978’) and its application to documents sent in compliance with sections 21A and 21B of the Housing Act 1988.
Section 7 IA 1978 provides that where an Act authorises or requires a document to be “served by post”, service is deemed effective when the letter is properly addressed, prepaid, and posted, and to have occurred when the letter would ordinarily be delivered.
The case also offers important clarification on the interpretation of deemed service clauses in tenancy agreements – in particular, the meaning of “notice”.
Background on the Case
The Khans (landlords) sought possession under section 21 of the Housing Act 1988. In support of the notice, they asserted that three prescribed documents—the Energy Performance Certificate (EPC), Gas Safety Record (GSR), and the How to Rent guide—had been provided to the tenant, D’Aubigny, prior to service of the section 21 notice. While the tenant acknowledged receipt of the section 21 notice, she denied having received the prescribed documents.
Clause 13.2 of the tenancy agreement stated that any “notice” served by the landlord could be delivered by first-class post and would be deemed received within 48 hours. The County Court found that the documents had been validly served, relying on both section 7 of the Interpretation Act 1978 and clause 13.2 of the tenancy agreement. The first appeal was dismissed. However, a second appeal was allowed on the grounds that the interpretation of section 7 had not yet been considered at appellate level.
Can Section 7 Apply Where Postal Service is Not Specified?
The key issue was whether section 7 applies where a statute merely requires a document to be “given” or “provided”, but does not expressly state it must be sent by post.
The landlords argued that postal service is implicitly authorised as one of several lawful methods of giving a document, and therefore section 7 should apply.
The Court of Appeal disagreed. Nugee LJ held that section 7 applies only where the relevant statutory provision itself refers to service by post. The words “serve”, “give” or “send” are not sufficient to engage section 7 unless accompanied by an explicit reference to postal service.
According to the Court, Parliament could have worded section 7 more broadly if it intended it to cover all methods of delivery. Section 7 is meant to assist with interpreting statutory language, not to introduce new presumptions of service where none are expressed.
What Does This Mean for Landlords?
Landlords cannot rely on section 7 IA 1978 to establish deemed service of prescribed documents under the Housing Act unless the underlying statutory provision expressly authorises service by post.
This interpretation significantly narrows the circumstances in which deemed service can be presumed based on section 7 alone.
However, landlords may still rely on properly drafted tenancy agreement clauses that create their own mechanisms for deemed service.
What is a ‘Notice’ Under a Tenancy Agreement?
The Court turned to the fallback argument based on clause 13.2 of the tenancy agreement. This clause allowed for deemed service of “any notice” sent by first-class post.
The tenant argued that “notice” should be construed narrowly – referring only to statutory notices such as section 21 notices.
The Court of Appeal rejected this restrictive interpretation. Nugee LJ held that the term “notice” could apply more broadly to formal written communications relating to the tenancy.
A notice, in this context, means a formal notification of something relevant to the contractual relationship. The covering letter enclosing the EPC, GSR and How to Rent guide was such a notice – it formally informed the tenant that the documents were enclosed.
Accordingly, the landlord was entitled to rely on clause 13.2 to establish deemed service of the letter – and by implication – of the enclosed documents.
Considerations
The Court ruled that while Section 7 IA 1978 doesn’t apply, tenancy agreement clauses can still establish deemed service if the document is a valid “notice”.
This highlights the need for clear tenancy terms on service, solid evidence of communication, and awareness that statutory deemed service may not cover all methods—especially post, unless clearly authorised.
If you wish to discuss any of the above, please contact our Dispute Resolution Team below or call us on 01702 338338.
