Freetown Ltd v Assethold Ltd [2012] EWHC 1351 (QB)

Case No QB/2012/0010[2012] EWHC 1351 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/05/2012
Before
THE HONOURABLE MRS JUSTICE SLADE DBE
Between
Freetown LimitedAppellantAssethold LimitedRespondent
Lawrence Power (instructed by The Chancery Partnership) for AppellantDavid Nicholls (instructed by Greenwood & Co) for RespondentHearing Hearing dates: 14 th March 2012
Judgment
[1]Freetown Limited (‘Freetown’) appeals from the judgment of Mr Recorder Hochhauser QC on 16th December 2011 in which Freetown’s statutory appeal to the County Court from a party wall award made by a third surveyor, was struck out on the basis that the appeal was out of time. The issue which is to be determined in this appeal is when the 14 day time limit for appealing an award under Section 10(17) of the Party Walls etc. Act 1996 (‘the 1996 Act’) begins. Mr Power for Freetown contended that when the award is sent by post, time begins to run on the date the award is received or was deemed to have been received by a party. Mr Nicholls for Assethold Limited (‘Assethold’) contended that when the method of service of the award is statutorily specified as an option, in this case, sending the award by post, the date on which time begins to run is when it is posted.

Relevant Facts

[2]Freetown is the freeholder of land known as 12 Westport Street London E1. Assethold is the long lessee of land known as 4 Westport Street which is immediately to the south of Freetown’s land. On 20th January 2011 Freetown served notices under the 1996 Act in relation to development work it intended to carry out on 12 Westport Street. Assethold dissented from the notice so that there was a dispute between the parties. The parties each appointed a surveyor who selected a third surveyor in accordance with Section 10(1) of the 1996 Act. The third surveyor made an award dated 22nd July 2011 (‘the Award’). Freetown sought to appeal the Award to the County Court. Assethold applied to strike out the appeal on grounds that it was lodged out of time.[3]The Recorder found that the Award was sent by post by the third surveyor on either Friday 22nd or Saturday 23rd July 2011. It was received by Freetown on Monday 25th July 2011. The appeal was lodged on 8th August 2011.[4]It was common ground before the Recorder that if the 14 day period within which an appeal from the Award must be lodged started on the date the Award was posted, the last day for lodging an appeal was Thursday 4th or Friday 5th August 2011. Mr Power on behalf of Freetown accepted that if either of those dates was the relevant date by which the appeal should have been filed, it was out of time. Since there was no discretion to extend time, Assethold’s application to strike out the appeal would succeed.[5]At the hearing before the Recorder, Mr Nicholls acknowledged that if time for the appeal started running on the date the Award was consigned to the post, because the court office was closed on Sunday 7th August, as a consequence of the decision in the House of Lords in Mucelli v The Government of Albania [2009] UKHL 2, Freetown had until the next day, 8th August 2011, in which to lodge the appeal and it would have been in time. Relevant Statutory Provisions The Party Walls etc. Act 1996

Relevant Statutory Provisions

[6]Section 10:
“(1) Where a dispute arises or is deemed to have arisen between a building owner and an adjoining owner in respect of any matter connected with any work to which this Act relates either— (a) both parties shall concur in the appointment of one surveyor (in this section referred to as an “agreed surveyor”); or (b) each party shall appoint a surveyor and the two surveyors so appointed shall forthwith select a third surveyor… … (11) Either of the parties or either of the surveyors appointed by the parties may call upon the third surveyor selected in pursuance of this section to determine the disputed matters and he shall make the necessary award. … (15) Where an award is made by the third surveyor— (a) he shall, after payment of the costs of the award, serve it forthwith on the parties or their appointed surveyors; and (b) if it is served on their appointed surveyors, they shall serve it forthwith on the parties. … (17) Either of the parties to the dispute may, within the period of fourteen days beginning with the day on which an award made under this section is served on him, appeal to the county court against the award…” (a) both parties shall concur in the appointment of one surveyor (in this section referred to as an “agreed surveyor”); or (b) each party shall appoint a surveyor and the two surveyors so appointed shall forthwith select a third surveyor… (a) he shall, after payment of the costs of the award, serve it forthwith on the parties or their appointed surveyors; and (b) if it is served on their appointed surveyors, they shall serve it forthwith on the parties. 7. Section 15: “(1) A notice or other document required or authorised to be served under this Act may be served on a person— (a) by delivering it to him in person; (b) by sending it by post to him at his usual or last-known residence or place of business in the United Kingdom; or (c) in the case of a body corporate, by delivering it to the secretary or clerk of the body corporate at its registered or principal office or sending it by post to the secretary or clerk of that body corporate at that office. (2) In the case of a notice or other document required or authorised to be served under this Act on a person as owner of premises, it may alternatively be served by— (a) addressing it “the owner” of the premises (naming them), and (b) delivering it to a person on the premises or, if no person to whom it can be delivered is found there, fixing it to a conspicuous part of the premises.” (a) by delivering it to him in person; (b) by sending it by post to him at his usual or last-known residence or place of business in the United Kingdom; or (c) in the case of a body corporate, by delivering it to the secretary or clerk of the body corporate at its registered or principal office or sending it by post to the secretary or clerk of that body corporate at that office. (a) addressing it “the owner” of the premises (naming them), and (b) delivering it to a person on the premises or, if no person to whom it can be delivered is found there, fixing it to a conspicuous part of the premises.”
The Interpretation Act 1978 Act 8. Section 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.”
Landlord and Tenant Act 1927 9. Section 23(1):
“Any notice, request, demand or other instrument under this Act shall be in writing and may be served on the person on whom it is to be served either personally, or by leaving it for him at his last known place of abode in England or Wales, or by sending it through the post in a registered letter addressed to him there… and in the case of a notice to a landlord, the person to whom it is to be served shall include any agent of the landlord duly authorised in that behalf.”

The judgment of Mr Recorder Hochhauser

[7]The Recorder relied on the judgment of the Court of Appeal in CA Webber (Transport) Ltd v Railtrack Plc [2004] 1 WLR 320, in particular paragraph 41 of the judgment of Peter Gibson LJ, to hold that the Award was served on the parties and therefore time for the purposes of an appeal started to run on the date it was posted by the third surveyor. The Recorder acknowledged that the judgment of the Court of Appeal in Webber concerned a different Act, the Landlord and Tenant Act 1954. The issue was whether a notice sent by a primary method for service specified in Section 23 of the Landlord and Tenant Act 1927 (‘LTA’), which governed services of notices under Section 25 of the 1954 Act, was deemed served on the date of receipt or the date on which it was sent. Mr Recorder Hochhauser agreed with the submission of Mr Nicholls for Assethold, that service for the purposes of Section 10(17) of the 1996 Act has the same meaning as that in the Landlord and Tenant Act 1927 and that when a document is sent by post, the date of service ‘on a person’ is the date it is consigned to the post. In reaching this conclusion the Recorder had considered the submissions of Mr Power on behalf of Freetown that such a construction would lead to injustice and would deprive Freetown of the right to a fair trial in breach of Article 6 of the European Convention on Human Rights (‘ECHR’). In accordance with the Human Rights Act Section 3(1) of the 1996 Act should be construed compatibly with that right. The submissions of the parties

The Interpretation Act 1978 Act

[8]Mr Power submitted that the Recorder erred in holding that he was bound by the judgment of the Court of Appeal in Webber to hold that an award served by post in accordance with Section 15 of the 1996 Act was served when posted not when it was received. He contended that the content and context of Section 23 of the LTA which the Court of Appeal considered in that case, was distinguishable from Section 15 of the 1996 Act. Second that there is nothing in Section 15 to indicate a contrary intention to Section 7 of the Interpretation Act 1978 (‘the 1978 Act’) applying to Section 15. This is an argument which was not raised before the Recorder but no objection was taken by Mr Nicholls to Mr Power doing so in this Court. Third that the Human Rights Act 1998 (‘HRA’) requires the court to adopt the construction of Section 15 for which he contends.

Landlord and Tenant Act 1927

[9]Mr Power submitted that Webber, in which the provisions of the Landlord and Tenant Act 1954 (‘LTA’) were considered, was distinguishable from the case under appeal. In Section 23 LTA, postal service was required to be by registered post. This was a material difference from the provisions of Section 15 of the 1996 Act in which the postal primary method of service did not require the post to be registered. That registered post is likely to arrive at its destination supports the view that this primary method of service casts the risk of non-delivery on the intended recipient. Paragraph 26 of the judgment of Peter Gibson LJ in Webber shows that allocation of risk on the intended recipient was a material consideration in deciding that service was effected under the LTA on the date an item was posted. The same cannot be said of items consigned to the ordinary post. There is less certainty that a document sent by ordinary post will reach its destination. This method of service does not cast risk of non-delivery on the intended recipient.[10]Mr Power also sought to distinguish Webber from the current appeal on the basis that under the LTA, notices may be served by the tenant as well as the landlord. This was a feature of the construction of Section 23 of the LTA referred to by Gibson LJ in Webber at paragraph 40 citing Neuberger J’s remarks in Beanby Estates Ltd v Egg Stores (Stamford Hill) Ltd [2003] 1 WLR 2004 in which he said at paragraph 50:
“Additionally, this is not, as it were, a result which prejudices tenants or confers an advantage on landlords. The 1954 Act provides for notices (see, for instance, section 26) or counter-notices (see, for instance, section 25) to be served by the tenant on the landlord. My conclusion on the effect of section 23 applies both ways.”
Mr Power pointed out that there was no such reciprocity in the 1996 Act.[11]Mr Power contended that a construction of Section 15 of the 1996 Act to provide that service was effected on the date the award was posted would give rise to the uncertainty and confusion which Sachs LJ took into account in Riley Gowler Ltd v National Heart Hospital Board of Governors [1969] 3 AER 1401 page 1402-1403 in construing the words ‘delivery of award’ in the London Building Acts (Amendment) Act 1939. It was submitted that the effect of the Recorder’s judgment would result in confusion because the owner recipients of an award would be unable to say when time began to run without making enquiries of the third surveyor as to when the award had been posted, which might be difficult and extensive.[12]It was submitted on behalf of Freetown that Parliament intended service under the 1996 Act to operate in accordance with service at common law, namely that an award is regarded as being served only if it has been received by or come to the attention of the recipient or his properly authorised agent, subject to the deeming provision in Section 7 of the Interpretation Act 1978 (‘the 1978 Act’).[13]Mr Power relied upon the judgment of Morgan J in Calladine-Smith v Saveorder Ltd [2011] EWHC 2501 (Ch) to contend that Section 7 of the 1978 Act applied to Section 15. Morgan J held that the process for determining what procedure for service is required under a particular statute is as follows:
“The process has essentially involved two steps. The first stage is to construe the individual statute and see whether there is a requirement that a notice be served on a certain person. If there is such a requirement then Section 7 Interpretation Act potentially applies, when that notice is sent by post.”
In Calladine-Smith, Section 7 was held to apply to the statutorily specified method of service and the notice was held to have been served when delivered in the post.[14]Mr Power contended that nothing in the 1996 Act sets out a contrary intention. The fact that a method of service is specified by statute does not lead to the conclusion that service by post is effected when the document is consigned to the post. As in Calladine-Smith in which Section 45 of the Household Reform (Housing and Urban Development) Act 1993 (‘the 1993 Act’) was considered, Section 7 applies to Section 15 so that the Award was served when it was deemed to have been delivered. The actual date of delivery, Monday 25th July 2011, accorded with the expected date of receipt.[15]It was submitted on behalf of Freetown that a construction of ‘sending by post’ in Section 15 of the 1996 Act as posting rather than receipt of an award by a party could result in injustice. The 1996 Act imposes a 14 day period within which a party may appeal the award made by a third surveyor. The statute does not provide for any extension of time. If a party does not receive the award within 14 days of posting by the third surveyor, they would lose their right of appeal. If the award was sent by post a party would never have 14 days in which to appeal and if delayed in the post would have little time within which to do so. On this basis the risk of the postal method of service is allocated solely and unfairly on the intended recipient.[16]This argument was also relied upon in support of the contention that the Human Rights Act 1998 (‘the 1998 Act’) is to be construed in such a way which is compatible with Article 6 of the ECHR as far as possible to do so. Mr Power contended that the construction of the 1996 Act by the Recorder deprived Freetown of its right under Article 6 to have its appeal from the third surveyor’s Award heard and determined by a court. Consequently the loss of the Article 6(1) right infringed Freetown’s right under Article 1 of the First Protocol to the peaceful enjoyment of its property at 12 Westport Street.[17]There has been no decision of the High Court or higher court on the construction of service by sending by post in Section 15 of the 1996 Act. However Mr Power relied on the judgment of HH Judge Knight QC in the Central London County Court in Satish Harpalami v Gray’s Road Investment Limited on 3rd March 2010 in which the judge held that Section 7 of the 1978 Act applies to the service of an award by a third surveyor under the 1996 Act. He could “…see no logic in S15(1) of the 1996 Act requiring that the act of posting equates with service. It is understandable that service by registered letter transfers the risk of receipt to the recipient. The phrase ‘registered letter’ does not of course appear in S15(1) of the 1996 Act. If an award is not received in the ordinary course of post, taking the date of posting as the date of service could result in the recipient being out of time to appeal under S10(17). The construction contended for by the building owner could lead to this result.” (paragraph 23) HH Judge Knight QC held at paragraph 24 that:
“The position in relation to an award served by a third surveyor on the parties is quite different from the service of a notice by one party in the landlord and tenant cases. I can see no reason why the service of an award by the third surveyor in the context of a party’s right to appeal that award compels one to the conclusion that there should be deemed service on the day the award is posted.”
Mr Power contended that HH Judge Knight QC’s decision that Section 7 of the 1978 Act applies to Section 15(1)(b) of the 1996 Act provides both certainty for the party wishing to appeal and a fair allocation of risk on parties to a party wall dispute. Accordingly the Award was served by the third surveyor on Freetown when it was received and not when it was posted.[18]Mr Nicholls submitted that Recorder Hochhauser QC came to the right conclusion in holding that the Award was served by the third surveyor when it was posted by him. Freetown was contending for the common law rules of service to apply to the express statutory provision. If the common law rule that a document is served when it is received applies no purpose would be served by Section 15 of the 1996 Act. That Section provides for non exclusive means of service. The common law rules would apply to methods of service not expressly provided for in that Section. As in Galinski v McHugh [1988] 21 HLR 47, referred to in paragraph 53 of Webber, the non exclusive statutory methods of service which a third surveyor may adopt establish a fair allocation of risk.[19]Mr Nicholls also referred to a passage from Railtrack Plc v Gojra [1998] 1 GLR 63 cited by Peter Gibson LJ at paragraph 27 in Webber. In Gojra Wilson J distinguished primary methods of service specified in Section 23 of the LTA which do not depend upon receipt from other methods of service to which the common law rules of service, that service is effected when a document is received, apply.[20]Mr Nicholls contended that there was no basis for distinguishing service by post in Section 23 LTA which is effective on consignment to the post, from that in Section 15 of the 1996 Act. Registered post, the Section 23 method, is simply one particular form of service by post. Service by post is specified in Section 15. Mr Nicholls accepted that the risk of non-receipt of a document is greater for non registered post than for registered post. That is not a reason for distinguishing the construction of service in Section 15 of the 1996 Act from that in Section 23 in the LTA. Insofar as an allocation and equality of risk is a material consideration, under the 1996 Act a third party surveyor’s award is served on both building owner and adjoining owner. The building owner or the adjoining owner may wish to appeal. If they do so the same rules apply to each. They are subject to the same risk. Further, Mr Nicholls contrasted Section 15 of the 1996 Act with Section 99 of the Leasehold Reform, Housing and Urban Development Act 1993 (‘the 1993 Act’), which was considered in Calladine-Smith. Under Section 99 the only method of service was by post. Mr Nicholls contended that there was therefore no basis on which it could be contended that the provision showed ‘contrary intention’ so as to disapply the deemed service provisions of Section 7 of the 1978 Act. Further, as could be seen from Calladine-Smith paragraph 8, both counsel accepted that Section 7 applied to Section 45 of the 1993 Act, the provision under consideration in that case.[21]Mr Nicholls contended that the interpretation of ‘sending it’ by post in Section 15 as consigned to the post and not received in the post led to greater certainty. The whole of Section 15 would be interpreted in the same way. The recipient will know that an award will be made and can ask the third surveyor to make it within a specified time frame. If Section 7 applied, Freetown’s interpretation would lead to different interpretation of the different sub-sections of Section 15. If Section 7 applied, unless proved, non-receipt would still be irrelevant and time would run from the date of posting.[22]Mr Nicholls submitted that a construction of sending by post under Section 15 of the 1996 Act so that service is effected when a document is consigned to the post is not incompatible with ECHR Article 6 and Article 1 of the First Protocol. The Court of Appeal in Webber rejected arguments that Section 23 LTA was incompatible with these rights. The argument that Section 3(1) of the Human Rights Act 1978 required Section 15 of the 1996 Act to be interpreted as meaning than service of a document is only effected upon receipt or deemed receipt under Section 7 of the 1998 Act should be rejected for the reasons given in paragraph 53 of the judgment of the Court of Appeal in Webber.

Discussion and Conclusion

[23]The contention of Mr Power that the Recorder erred in law in holding that the Award was served when it was posted not when it was received depends upon whether the judgment of the Court of Appeal in Webber is distinguishable from the case under appeal. The Court of Appeal in Webber considered and rejected three arguments challenging the judgment of the Recorder in that case that a notice served under Section 25 of the LTA served by a primary method authorised by Section 23 of the Landlord and Tenant Act 1927, in that case recorded delivery, was served when consigned to the post not when received. Two of the arguments advanced on behalf of the Appellant before the Court of Appeal in Webber were advanced by Mr Power in this appeal: that there was nothing in the relevant statutory notice provision to indicate a contrary intention to the application of Section 7 of the 1978 Act and that Section 3 of the Human Rights Act 1998 requires the court, as far as possible, to give effect to the statutory notice provision in a way which is compatible with the Article 6 and Article 1 of the First Protocol to the ECHR and that this would require that an award sent by post be regarded as served when it was received. In this case the success of these two arguments depends on distinguishing the construction of Section 15 in material respect from that of Section 23 LTA endorsed by the Court of Appeal.[24]In Webber, Gibson LJ referred at paragraph 33 to the time service was effected by the three alternative methods of service specified in Section 23 LTA described by Neuberger J in Beanby Estates: personal service, service at the premises and service through the post by recorded delivery. Of these methods Neuberger J observed:
“The first two options clearly envisage service occurring at the moment that it is described as effected, i.e. the moment of personal service in the one case, and the moment the notice is left at the premises in the other case. Accordingly, logic strongly suggests that, if the act of posting of the notice by recorded delivery effects service, then the moment at which the notice is put in the post is the moment at which service is effective.”
[25]The categorisation by Neuberger J of methods of service in Section 23 is comparable to those in Section 15 save for the provision in Section 23 that service by post is to be by registered post.[26]After an extensive review of the authorities on whether Section 23 LTA contains anything which excludes the applicability of Section 7 which in turn required consideration of whether service by registered post was effected on consignment to the post rather than receipt, Peter Gibson LJ in Webber held at paragraph 41:
“I conclude on this review of the authorities that, save only for Lex Service, the consistent view taken by the courts has been that where a notice is served by a primary method authorised by section 23, such as by recorded delivery post, it matters not whether the notice was received and that there is no scope for the application of section 7, the risk of non-receipt being cast on the intended recipient. The date of service is the date when the server entrusts the notice to the post for recorded delivery, and that provides certainty for those who are required to serve documents. That too is the view of Woodfall in the paragraph to which I have already referred. Lex Service has been criticised, and I have expressed my opinion that it was decided per incuriam. Accordingly, it seems to me that, having regard to the cogent and consistent (save for Lex Service) reasoning in the authorities, it is not open to this court now to return to the line apparently taken in Lex Service that section 23 is subject to section 7. Accordingly, I would reject Mr Tanney's primary submission.”
[27]As to whether the construction of the statutory notice provision in Section 23 LTA decided by the Court of Appeal in Webber and previous authorities deprived a tenant of his Article 6 and Article 1 of the First Protocol rights. Peter Gibson LJ held at paragraph 46:
“It is sufficient that I should consider whether interpreting section 23, as I have done, in a way which excludes the application of section 7 and which does not import what I would call the “attempted delivery” gloss urged by Mr Tanney, is incompatible with Article 6 and Article 1, or whether section 23, as so interpreted, is a reasonable and proportionate response by the legislature to the problem addressed by section 23. In this context, I bear in mind the remarks of Lord Nicholls of Birkenhead in Wilson’s case at p 589, para 69: “There must also be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. The means chosen to cure the social mischief must be appropriate and not disproportionate in its adverse impact.”
And at p 589 para 70:
“…Courts should have in mind that theirs is a reviewing role. Parliament is charged with the primary responsibility for deciding whether the means chosen to deal with a social problem are both necessary and appropriate. Assessment of the advantages and disadvantages of the various legislative alternatives is primarily a matter for Parliament. The possible existence of alternative solutions does not in itself render the contested legislation unjustified: see the Rent Act case of Mellacher v Austria (1989) 12 EHRR 391, 411, para 53. The court will reach a different conclusion from the legislature only when it is apparent that the legislature has attached insufficient importance to a person's Convention right. The readiness of a court to depart from the views of the legislature depends upon the circumstances, one of which is the subject matter of the legislation. The more the legislation concerns matters of broad social policy, the less ready will be a court to intervene.”
Peter Gibson LJ continued at paragraph 53:
“In my judgment, having regard to the aim of section 23 as identified in Chiswell v Griffon Land and Estates Ltd[1975] 1 WLR 1181 and Galinski Mc Hugh57 P & CR 359, that is to say to assist the server of the notice, and in Blunden v Frogmore Investments Ltd[2002] 2 EGLR 29, that is to say to establish a fair allocation of the risk of any failure of communication and to avoid disputes of fact, where the true facts are likely to be unknown to the server of the notice and difficult for the court to ascertain, it is neither unreasonable nor disproportionate to achieve certainty for landlords and tenants alike by section 23 being interpreted (as the courts have done subject only to Lex Service plc v Johns[1990] 1 EGLR 92) as excluding the applicability of section 7 to section 23 and if Mr Tanney's secondary argument is also rejected. In my judgment so to construe section 23 does not fall foul of the 1998 Act.” “There must also be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. The means chosen to cure the social mischief must be appropriate and not disproportionate in its adverse impact.” “…Courts should have in mind that theirs is a reviewing role. Parliament is charged with the primary responsibility for deciding whether the means chosen to deal with a social problem are both necessary and appropriate. Assessment of the advantages and disadvantages of the various legislative alternatives is primarily a matter for Parliament. The possible existence of alternative solutions does not in itself render the contested legislation unjustified: see the Rent Act case of Mellacher v Austria (1989) 12 EHRR 391, 411, para 53. The court will reach a different conclusion from the legislature only when it is apparent that the legislature has attached insufficient importance to a person's Convention right. The readiness of a court to depart from the views of the legislature depends upon the circumstances, one of which is the subject matter of the legislation. The more the legislation concerns matters of broad social policy, the less ready will be a court to intervene.”
[28]Save that Section 23 specifies service by registered post rather than service by post, there is no material difference in the meaning of the primary methods of service specified in that Section and in Section 15.[29]‘Sending by post’, a primary method of service specified in Section 15, includes all postal communication: registered, recorded, tracked and ordinary delivery. The construction contended for by Mr Power would lead to a conclusion that an award sent by registered as well as ordinary post would be served when received. No difference to reflect any increased certainty of delivery by registered post would be recognised by such a construction. Further, such a construction would deprive Section 15(1)(b) and the latter part of 15(1)(c) of any purpose. The inclusion of service by post as a primary method of service would do no more than to repeat the common law position as explained by Wilson J in Gojra referring to the comments of Megaw LJ in Chiswell:
“…notice sent by ordinary post instead of by a primary method, is served – and given – on such dates, if any, as it is received.”
[30]In my judgment the purpose of Section 15 is not materially distinguishable from that of Section 23. In Galinski Slade LJ held at paragraph 54:
“…section 23(1) is intended to assist the person who is obliged to serve the notice, by offering him choices of mode of service which will be deemed to be valid service, even if in the event the intended recipient does not in fact receive it.”
Peter Gibson LJ held at paragraph 22 that this ratio was binding on the court in Webber.[31]A construction of Section 15(1) which treats service by post as effected when a document is consigned to the post provides greater certainty of proof of service than would one which depends upon evidence of receipt. In the circumstances under consideration in the current appeal, the Award is to be served by a third surveyor who is not a party to the dispute. The objection made by Mr Power that uncertainty as to date of service would arise because a party would have to enquire of the third surveyor when the Award was posted is far less than the uncertainty of relying on evidence of when an interested party received the document. He may say that he was away, that the document was not given to him by the post room or a number of other reasons for late or non receipt. Such uncertainty may well give rise to satellite litigation deprecated by Sachs LJ in Riley Gowler Ltd.[32]A primary method of service specified in Section 15(1) affects both parties to a dispute on whom a third surveyor is to serve an award. Either party may wish to appeal an award. Neither party is advantaged by the start of running of time within which to appeal from the date the award is consigned to the post.[33]Mr Power is correct in his submission that a short period of time is given to a party who wishes to appeal an award and that a construction which provides that service is effected when an award is consigned to the ordinary post would result in the recipient having less than 14 days in which to appeal. Further there is no provision for an extension of time within which to appeal if the award is delayed in the post or does not arrive. Whilst this construction may cause injustice in a few cases, that is an insufficient reason to displace that of a statutory provision, Section 15 of the 1996 Act, which is materially indistinguishable from Section 23 LTA.[34]The Court of Appeal in Webber held that on the proper construction of Section 23 LTA there was no scope for the application of Section 7 of the 1998 Act. Calladine-Smith does not assist Mr Power to avoid this conclusion. Morgan J in Calladine-Smith was concerned with the meaning and application of the exception ‘unless the contrary is proved’ to deeming provision in Section 7 as to the time of effecting service and not to whether such service is effected by delivery rather than by consignment to the post. The appeal was concerned with the service provisions under Section 45 of the 1993 Act. As appears from paragraph 8 of the judgment, the parties agreed that Section 7 of the 1978 Act applied to the statutory provision at issue. The court therefore did not consider whether ‘the contrary intention’ appeared in Section 45 so as to disapply Section 7. At paragraph 32 Morgan J made it clear that the issue decided in Calladine-Smith was the standard of proof to be applied when considering whether ‘the contrary is proved’ in Section 7 and not the combined operation of Section 23 LTA and Section 7 of the 1978 Act.[35]In my judgment, a proper construction of Section 15 that service by post is effected when a document is consigned to the post, evidences a ‘contrary intention’ to the deeming provision in Section 7 of the 1978 Act which is predicated on service being effected when a document is received. There is no basis on which to distinguish Section 15 in this regard from the conclusion reached on the non applicability of Section 7 to Section 23 of the LTA reached by the Court of Appeal in Webber. I respectfully disagree with the conclusion reached by HH Judge Knight QC in Satish Harpalami as to the construction and application of Section 15.[36]For the reasons given in Webber by Peter Gibson LJ at paragraphs 46, 50 and 53 and by Longmore LJ at paragraphs 57 to 62, Section 3 of the HRA does not require a construction of Section 15 to provide that service by post is effected when a document is received not when it is consigned to the post.[37]This Court is, as was the Recorder, bound by the judgment of the Court of Appeal in Webber to hold that the Award was served on Freetown on 22nd or 23rd July 2011. Their appeal was lodged on 8th August 2011 and was out of time. The appeal is dismissed.