No. HQ05X01339
(formerly CO/365/2004)
Neutral Citation Number: [2005] EWHC 2783 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(ON TRANSFER FROM THE ADMINISTRATIVE COURT)

Royal Courts of Justice
Strand, London WC2A 2LL

Date: 2nd December 2005

BEFORE:

MR MICHAEL SUPPERSTONE Q.C.
(Sitting at a Deputy High Court Judge)

_____________________________ 

B E T W E E N

PETER TERRANCE TERRY
Claimant
-	and -

THE LONDON BOROUGH OF TOWER HAMLETS
Defendant
_____________________________ 
_____________________________ 
Mr Charles Phipps (instructed by Legal Action) for the Claimant
Mr Kelvin Rutledge (instructed by K. Cohen, Solicitor, London Borough of Tower Hamlets) for the Defendant
_____________________________ 

Judgment
The Deputy Judge:

INTRODUCTION

1.	At the time of the hearing of this claim on 20 October 2005 Mr Terry was 84 years old.  Since 1987 he had been the secure tenant of a flat at 4 Beckett House, Jubilee Street, London E1 ("the property").   He had made an application to buy the property from the Defendant. He disputed the Defendant's decision to treat 10 June 2003 as the effective date of his Right to Buy application.   He contended that he sent the form RTB1 to the Defendant by first class post on 6 March 2003.  The issue in this case is whether he served form RTB1 on the Defendant before 26 March 2003 when the discount rules were changed.  If he did he would have been entitled to the full statutory discount of £38,000, whereas if the form was not served until after the deadline the discount would be capped at £16,000. 

2.	At the conclusion of the hearing on 20 October 2005 the question upon whom the Claimant was required to serve form RTB1 in order to comply with section 122(1) of the Housing Act 1985 ("HA 1985") was left open.  I agreed not to give judgment until I had received further written submissions from the parties.

3.	Subsequently I was informed by Counsel that sadly Mr Terry died on 30 October.  I have received letters dated 2 and 3 November from Mr Phipps, Counsel for the Claimant, and a letter dated 2 November from Mr Rutledge, Counsel for the Defendant, addressing the question as to whether in the circumstances I should give judgment in this case.   I consider that there is no good reason which would warrant me not doing so. 

THE RELEVANT LAW

4.	Section 122 of HA 1985 is entitled "Tenant's notice claiming to exercise right to buy".  Subsection (1) thereof provides:

"A secure tenant claims to exercise the right to buy by written notice to that effect served on the landlord". 

5.	Section 176 is entitled "Notices".   Subsection (3) thereof provides:

"A notice under this Part may be served by sending it by post."

6.	Section 7 of the Interpretation Act 1978 provides that:

"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 be delivered in the ordinary course of post".

7.	In Chiswell v. Griffon Land & Estates [1975] 2 All ER 665 the Court of Appeal decided that the standard of proof required by Section 26 of the Interpretation Act 1889 (the predecessor to Section 7 of the 1978 Act) is no higher than the ordinary civil standard of proof, namely on the balance of probabilities.  

The first issue:  Did Mr Terry send form RTB1 to the Defendant by first class post on 6 March 2003?

8.	At a hearing before Munby J. on 12 October 2005 the parties agreed that if Mr Kevin Gregory attended the trial for cross-examination, the Defendant shall consent to the Claimant's witness statement dated 1 November 2004 standing as his evidence in chief and the Claimant shall not be required to attend to be cross-examined.  

9.	In his witness statement of 1 November 2004 Mr Terry said as follows: 

"4.	I reaffirmed my decision in January 2003 that I wanted to invoke my right to buy my Council flat as I have been here for some 15 years. I took some advice and found out that if I put in my RTB1 form before 26th March 2003 then I would be eligible to receive a greater discount ….

5.	On Thursday 6th March 2003, Mr Gregory spent part of the late afternoon helping me complete the RTB1 form.  When we finished the form it was 5.00p.m. but by the time we got to the Post Office and Mr Gregory pulled in front of the Post Office as he said we would not be long it was after 5.30p.m. and the doors had been locked shut. Unfortunately the delay between completing the form and arriving at the post office was firstly because it takes me time to get my things together before we left especially as I do not walk fast.  Secondly the traffic seemed to be extra busy and the journey though short took extra long.  He had already had put two first class stamps on the envelope, and said that he had thought of sending the A3 envelope by recorded delivery, but remembered that the Government booklet that came with the application of the Right to Buy only said that it was "a good idea"" to send the RTB1 form by recorded delivery but it was not a must.  He said he found the wording very odd as normally anything legal is stated in exact terms but not this matter. We both agreed that it was best to just post it as we were here now and so he went and placed it through the letter post box". (Bundle, p.142).

10.	Mr Kevin Gregory in his evidence in chief referred to two witness statements that he made on 1 November 2004.   He said that the witness statement that appears at pages 144 and 145A in the Bundle was made in the morning of that day.  He said that after reading it he decided he should expand upon it and in the afternoon he made the fuller statement that appears at pages 143A-C in the Bundle. That latter statement stood as his evidence in chief. On 17 October 2005 Mr Gregory made a further statement which appears at pages 205-206. 

11.	In his witness statement at pages 143A-C, Mr Gregory stated as follows: 

"2.	On 6th March 2003 I arrived at Mr Terry's flat situated at 4 Beckett House, London E14, in the early afternoon to assist him in the completion of his RTB1 form so that he could invoke his right to buy his council flat.  I had brought with me an A5 envelope which I had already placed two first class stamps upon for ease.  

3.	We completed the RTB1 form and I wrote out the address on the A5 envelope as Central Right to Buy Section, Great Eastern Enterprise, Block D, 3 Millharbour, London E14 9XP by around by 5p.m.   I then told Mr Terry that we had better make a move so that we can catch the Post Office before it closed which I believed was at 5.30p.m.  Unfortunately due to Mr Terry's frailty his mobility is restricted which caused some delay just to arrive to my car.  I had not used and never do use the lift to Mr Terry's first floor flat but recall that the lift was not working so we had to travel down one flight of stairs.  Our journey was further hampered by the traffic which it seemed more like that on a Saturday.  This sudden and unexpected congestion caused us to arrive and park up outside the Post Office just after 5.30p.m. by which time it was closed and after checking found the doors were locked.  

4.	This did not concern me as I had recalled from the Right to Buy booklet published by the Office of the Deputy Prime Minister (ODPM) that it stated quite clearly that it was "a good idea" to send in the RTB1 form by either recorded delivery or by hand.  Because the wording was so odd it fixed in my mind.  I explained to Mr Terry what I remembered reading and we both agreed that it would be best to post the envelope, as the next post would be picked up at around 6p.m.   The envelope was already addressed and had two first class gold coloured Queen's Head stamps on and so I therefore walked over to the post box and placed it in inside". 

12.	Mr Gregory was cross-examined by Mr Rutledge on the discrepancies between his two witness statements of 1 November.   In particular he was asked about the statement in paragraph 2 at page 143A that he brought to Mr Terry's flat an envelope upon which he had "already placed two first class stamps"; by contrast in paragraph 4 of the statement he made earlier that day he said that it was by the post box that he "put two first class stamps on the envelope and sent it by regular post" (p.145A).  In response Mr Gregory said that he knows when he posted the envelope it had two first class stamps on it.  He realised his mistake in his first statement and therefore changed it in the second statement.  He said that even when sending letters by Recorded Delivery it was his practice to put stamps on first as it reduced  the fee that had to be paid over the counter and made the process quicker.  

13.	Mr Gregory was also cross-examined on the letter dated 16 June 2003 from Legal Action to Mr Bhatt at the Defendant's Central Right to Buy Section (Bundle pp.16/17).  He said that he had input into the letter, but was not the author of the letter.  On the second page of the letter there is a reference to "our client", namely the Claimant, posting the envelope through the letterbox of the Whitechapel Main Post Office.  He said those words must have been transcribed incorrectly because Mr Terry did not post the letter.  Mr Gregory put the letter in the box for Mr Terry.

14.	Miss Gibson, Head of Housing for Legal Action, said that she wrote the letter of 6 June 2003 from notes made by Mr Gregory.  She said that the reference on the second page of the letter to Mr Terry posting the letter was an error that she made.  

15.	I am satisfied on the evidence that the Claimant sent the RTB1 to the Defendant by first class post on 6 March 2003. 

The second issue:   If the Claimant served the form on 6 March 2003, can the Defendant prove on a balance of probabilities that they did not receive it?

16.	During the course of closing submissions a subsidiary issue was raised which may have an impact on the determination of this second issue. The question is upon whom was the Claimant required to serve form RTB1 in order to comply with section 122(1) of HA 1985?   Was it (1) upon the Central Right to Buy Section at Millharbour, as the Defendant contends, or (2) upon an employee or agent of the Defendant, as the Claimant submits.  Since the hearing on 20 October Mr Rutledge and Mr Phipps have each provided me with two supplemental written submissions on the point.  

17.	The evidence of Mr Gregory was that he wrote out the address on the A5 envelope as "Central Right to Buy Section, Great Eastern Enterprise, Block D, 3 Millharbour, London E14 9XP". If this is so, the envelope was properly addressed.  

18.	Mr Adams who is employed by the Defendant as their borough-wide Postal Services Manager gave evidence in accordance with his witness statement dated 30 September 2004 (Bundle, pp 57-58) as follows: 

"2.	The Defendant's Right to Buy section forms part of its Home Ownership department, which is located on the first floor of Millharbour Block D, Great Eastern Enterprises, 3 Millharbour, London E14.  The Royal Mail does not deliver mail to that building.  What happens is that by special arrangement with the Royal Mail, about 7.30a.m. every weekday, a driver from the Town Hall attends at the Royal Mail sorting office at Burdett Road, London E14 and collects sacks of mail addressed to the Council at the Town Hall, at Millharbour and at another office at Jack Dash House, London E14.  Mail which is received by the Royal Mail sorting office at Burdett Road on a Saturday is collected the following Monday as described. 

2.	The driver delivers these sacks to the Town Hall post room, where the mail is opened and checked for cheques and then placed in the pigeon-holes for the various addressees. There is a special logging-in procedure for cheques, but except for recorded or special deliveries, if a letter does not contain a cheque, its arrival in the post-room will not be logged. 

3.	There is a special pigeon-hole for the whole of the Home Ownership section into  which the Right to Buy section's mail is placed.  A messenger then puts the contents of that pigeon-hole into a blue bag and delivers it personally to Home Ownership at Millharbour, Block D, at about 10.00a.m., where it is logged and distributed according to their own departmental system, of which I do not have first hand knowledge". 

19.	Accordingly on Mr Adams' evidence Form RTB1 which the Claimant had properly addressed to the Central Right to Buy Section at Millharbour would not have been delivered by the Royal Mail to the building in which the Section is located, but to the Royal Mail's office at Burdett Road from which it would be collected and dealt with by employees or agents of the Defendant. 

20.	In paragraph 5 of his Supplemental Skeleton Argument Mr Rutledge refers to a further statement by Mr Cohen, of the Defendant's Legal Services, which exhibits a copy of the Claimant's Tenancy Agreement signed on 5 June 1987.  By reference to this document, in paragraph 8 of his Supplemental Skeleton Argument, Mr Rutledge submits that "the Director of Housing is the Claimant's "Landlord" for the purposes of section 122(1)".   In paragraph 5 of this Skeleton Argument Mr Rutledge says that: "If the Claimant asserts that the tenancy agreement and conditions Mr Cohen produces are not those he received, and can produce the ones he did receive, then Tower Hamlets would not object to him putting in further evidence to that effect".  In the present circumstances it would not be right to admit this evidence. 

21.	In my judgment (1) it is the Defendant who is the Claimant's landlord, and (2) the RTB1 was properly served when it was received by an agent of the Defendant who was authorised to receive it on the Defendant's behalf. I accept Mr Phipps' submission at paragraph 5 of his Supplemental Written Submissions that,  if service on the Defendant's Home Ownership Department is necessary, then the driver who collected the Home Ownership Department's mail from the local delivery office acted not only as the agent of the Defendant, but also as the agent of the Defendant's Home Ownership Department in relation to the mail to be received by that Department. 

22.	There were two other witnesses who gave evidence on behalf of the Defendant in connection with their procedures for dealing with in-coming mail.  Ms Beackon who is employed by the Defendant as a Senior Right to Buy and Leaseholder Services Officer in their Right to Buy Section gave evidence in accordance with her statement dated 22 October 2004. (Bundle, pp 211-213). In cross-examination she accepted that there was no written record of internal office procedures.

23.	At the outset of the hearing I gave the Defendant permission to adduce in evidence the witness statement of Ms Casimir dated 1 October 2004 (Bundle, pp 60-62) who had been employed by the Defendant as an Administration Assistant in their Right to Buy Section. She left the Defendant's employment without leaving a forwarding address and accordingly could not be contacted for the purposes of requesting her attendance at trial. 

24.	On the basis of the evidence given by Mr Adams, Ms Beackon and the witness statement of Ms Casimir, Mr Rutledge submitted that at the relevant time the Defendant had in place a well-organised system for dealing with in-coming mail and a contemporaneous method of record-keeping that, on the balance of probabilities, would have recorded the Claimant's application had they received it in March 2003.  In addition Mr Rutledge referred to the factors identified in paragraph 20 (b) - (f) of his Skeleton Argument in support of the Defendant's case. 

25.	In my judgment the Defendant has failed to show on a balance of probabilities that they did not receive the Claimant's form RTB1 before 26 March 2003.  In assessing the evidence in relation to this issue I have had regard to the following matters: 

(1)	The form was sent by first class post on 6 March 2003. It was posted in the post box at Whitechapel Street Post Office, which is a sorting office.  From there the Royal Mail should have sent it to Burdett Street which is a delivery office.  I accept Mr Phipps' submission that if the burden was on the Claimant to show that on a balance of probabilities the form was delivered by the Royal Mail to Burdett Street and collected by the Defendant's driver, it would have been discharged.  This is not an instance of a letter being posted in one part of the country in an ordinary post box and then there being a lengthy chain of transfers before it is delivered by a postman to premises in another part of the country. It was open to the Defendant to obtain evidence relating to the performance of the Royal Mail.  Such evidence as the Defendant obtained was produced much too late for it to be admitted at trial.  

(2)	The number of stages from the collection of the form by the Defendant's driver at the Burdett Street office, through its processing in the Town Hall post room, to its delivery to 3 Millharbour and finally through its processing in the Right to Buy section of the Defendant's Home Ownership Department, makes it much more likely that the letter was mislaid by the Defendant. 

(3)	The evidence of Mr Adams, Ms Beacon and Ms Casimir indicate how the Defendant's systems and procedures are intended to operate.  However certainly during the course of this litigation it is clear that the Defendant's systems and procedures have not in fact operated efficiently.  In this regard I take into account the following matters: 

(i)	having accepted that it received the RTB1 on 10 June 2003, the Defendant failed to send to the Claimant the RTB2 within the 4 week time period as required by section 124 of the HA 1985.  The Claimant had to serve a Notice of Delay before the RTB2 was eventually sent out; 

(ii)	the present proceedings were commenced after two letters from the Claimant's representatives were not answered by the Defendant and the Claimant had warned that he would be compelled to issue judicial review proceedings by a certain date if there was no response; 

(iii)	the Claimant served his Claim Form on the Defendant by fax at 2.42p.m. on 30 January 2004. By letter dated 28 June 2004 the Defendant asserted that they had no record of that service. Further in that letter the Defendant stated that they had no record of an application by the Claimant (having misplaced him in the Homeless Assessment Section); 

(iv)	on 27 April 2004 Charles J. granted permission for the Claimant to apply for judicial review.  The Learned Judge observed that no Acknowledgement of Service had been lodged and expressed the hope that the Defendant would deal with the claim "promptly and at an appropriate level".  Nevertheless the Defendant failed to act until 4 October 2004 when they sought permission out of time to contest the claim; 

(v)	On 6 October 2004 Munby J. gave the Defendant permission to file and serve its Defence by 4p.m. on 21 October 2004.  The Defendant failed to comply with this time limit, serving their Defence on 25 October 2004. (For the learned Judge's criticism of the Defendant's defaults, see para 2 of his judgment at p.114 of the Bundle).  

CONCLUSION

26.	In my opinion:

(i)	the Claimant has established that he did send the RTB1 to the Defendant by first class post on 6 March 2003; and

(ii)	the Defendant has failed to prove on the balance of probabilities that they did not receive the form before 26 March 2003 when the discount rules were changed. 

I will hear from Counsel as to the relief, if any, that I should grant in the present circumstances.