Posted… But Was It Served? Lamba v Enfield

In this Newsflash episode, Lizzie Collin is joined by Richard Snape to unpack the High Court’s ex tempore decision in Lamba v Enfield Borough Council, a judgment that has already sparked lively debate across LinkedIn.

The case raises fundamental questions about how notices are validly served under leases.

Richard and Lizzie discuss:

•How the court approached the interaction between section 196 of the Law of Property Act 1925 and section 23 of the Landlord and Tenant Act 1927 when serving notices.
•Why the decision appears to depart from established authority on when service is deemed effective
•The significance of lease drafting, particularly where notice provisions state that notices “shall” be served in accordance with section 196.
•The potential implications for statutory notices under the Landlord and Tenant Act 1954 and the Landlord and Tenant (Covenants) Act 1995.
•Steps landlords, tenants, and practitioners should take to minimise risk when serving notices while uncertainty remains.

This podcast highlights how a single drafting choice can fundamentally alter long-understood principles. For anyone advising on commercial property, lease renewals or break notices, this is a timely deep dive into a developing and potentially contentious area of law.

Other cases mentioned include:
•Commercial Union v Mustafa [1999]
•Blunden v Frogmore Investments Ltd [2002]
•CA Webber (Transport) Ltd v Network Rail Infrastructure Ltd (formerly Railtract Plc) [2003]
•Beanby Estates Ltd v The Egg Stores (Stamford Hill) Ltd [2003]
•Galinski v McHugh [1989]

Training & Free Webinars for Property Professionals:

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This podcast is for informational purposes only and is not intended to provide legal or professional advice. No liability is accepted by Davitt Jones Bould for any reliance placed on its content.

Transcript

Lizzie C
Hello Richard.

Richard Snape
Hello, Lizzie. And what have you been doing since? I last spoke.

Lizzie C
The usual joke while we're doing back-to-back podcast recordings.

Richard Snape
Yeah, I think.

Lizzie C
But that's all good. We've got another one to discuss and this one is Lambert and Enfield Borough Borough Council and it's a High Court case. We don't have an exact date yet as it was next temporary judgement, but it's all about service serving of notices in leases and I think we'll start with a bit of background understanding of this area of. Law start with.

Richard Snape
Actually, as well as I can see at the moment it flies in the face of of quite a lot of previous case law. But and how much it depends on its facts as another matter. And so I can't take to tell you about the detail, I mean, meaning practical law mentioned now and they basically say. We got so much about it because we haven't seen the the written judgement yet. Perhaps we'll revisit it every one day. We do. It's. Text temporary and the judge just gave the judgement after the in the other case had been discussed and likes and heard, so there's a lot of things left open to it, but it's being talked about quite a bit so I thought I'd. Black Bike, The Bulletin and talk about. But it I mean it's always been accepted that in terms of serving notices, you take a sort of belt and break graces approach, you just you know if you got any doubts whatsoever you do hand and special delivery and 1st class post and leave it at the last known address and so on. On the basis that one of them's going to be right. Well, it's a conflict that's statutory based. Really. There's two commonplace pieces of statute to deal with service of notices and leases. One is section 196 of the Law of Property Acts 1925 and and it basically says you can either serve last known abode or business premises or you can serve by first class post or. Just to come special delivery and it also goes on to say that. If you use registered post, it's deemed to be served at the day it would be received. The ordinary post, which isn't a clue what that is nowadays, but also it says if it's returned undelivered, it's deemed not to be served, whereas the other one, the other commonplace. Provision is in section 23 of the the 271927 Landon Tenant Act, which basically says where you can serve again and you can serve, register, post or hand or leave it last known address and. Perhaps, as I mentioned, short. Thing. Various cases have interpreted that as meaning the moment it's posted. Basically, it's deemed to be served, and section 27 is so sorry. Section 23 of the 27 Act is the service provision in under the. Landon Tennis at 1954, which is obviously a highly significant piece of leasehold legislation. It incorporates Section 23, section 66, Section 4 of the actors, and it's also, though well discussed so much. It's also the the notice provisions on the the landlord and Tenant Covenants Act of 1995 with the relevant provisions including section 17. So leases tend to include both, but if you want to make sure services occurred or so, we all thought then the best way of doing it is. Is under Section 23 of the 27 act. Because you know, once it's posted, it's deemed to be served, and if it's returned, it's still deemed to be served. And there's been various cases over the years which have discussed that.

Lizzie C
And what have the previous cases said?

Richard Snape
I remember there's a case called Commercial Union and Mustafa. Obviously again, I can't tell you which cases were discussed in the in the actual decision itself. Perhaps we'll revisit it. As mentioned, one day it was 1999, case about the section 17 of the. Landlord and Tenant Covenants Act, which basically says that if you want to, if there's been an assignment of the lease and you want to see. The original. Tenant Pre 1996 lease under privity of contract. They still are liable for breach of contract for non payment of rent and the likes even if they've. Sign the lease or if you want to sue under a guarantor basically then or including an auger. Then you have to notify the the the original party within six months of the fixed charge. The rent usually to be coming due. And in commercial unit in Mustafar they posted. The you know the the sort of you know. The section 17 notice within six months, but it wasn't received until after six months. And the court decided it's still being served. The moment was posted. Probably the most important case or death, but definitely the most important case there. A couple of Court of Appeal cases in 2002. One I remember well, London and Frogmore investment. That the lease allowed the landlord to sort of notice this. They incorporated section 196 and section 23 in the lease, but they allowed them to serve notices if the premises would been was unoccupied for for six for more than six months, and it was unoccupied. Because it was blown up in a bomb explosion. You're not intrigued.

Lizzie C
Always. What happened there?

Richard Snape
Well, it's you before your time living. It was the 1996 Manchester bombing. Do you remember that? We wouldn't remember it. Cause you weren't born.

Lizzie C
Well, I don't personally remember it, but yes, I've heard of it.

Richard Snape
The Arndale Centre in Manchester. There was the higher rate. Bluetooth joined the Euro 1996.

Lizzie C
Yeah.

Richard Snape
And as a consequence, it this premises of landlord and help the tenants, you know, sort of move all the the longings and likes. But six months later it was unoccupied, all caught and off you couldn't get that. But for whatever reason, the landlord. Basically did two things. He left a notice at last known address at the premises, even though the tenant wasn't there, they knew the tenant wasn't there and the tenant couldn't actually access the premises any. And they also served a notice with registered post, which obviously was returned, but it was still held. That notice had been served by the Court of Appeal, both leaving that last known address, even though the tenants couldn't access. And also the moment the letter was delivered. There was another place called CA Webber and Network Rail infrastructure from like about the same time actually, just beforehand as a. Where they. They are in that particular case, it's they they they served the section 25 notice on the tenants opposing the new lease and the notice has to be between 6 and 12 months in June in duration and there were instructions by the tenant that not to deliver. A post and register post and likes on a on a Saturday. It would have turned up on the Saturday, but didn't actually turn up until the following week, and by that time it was less than six months. So the tenant argues the notice is void. But again, it was held to be valid at the moment you posted the thing. It's it's it's deemed to be served and there's another case called BB Estates in Egg stores, which I won't bother you with is about the 54 landlord and tenant. That again. But on a different version, the pre 2004 version and they said the same thing. There's a whole line of cases. Linsky and Mccue. I remember another one. Which said if you use the section 23 at the moment the things posted, even if you never see it served a notice it's valid. So on the face of it looks like, you know, if they've incorporated both section 196 and section 23, that should be valid. But then came this case.

Lizzie C
And what have they said in this case?

Richard Snape
Well, in this particular case, they basically they serve registered post. And it was returned, and they also served by first class post, but there was no. Of when they uh, it was there was no date. On the on. The the letter, basically. And so that wasn't accepted, but in the lease itself it said that notices on their own connection with this lease shall be served in accordance with Section 196 of the Law Property Act. And so the judge, in this particular case said that that Trump's it all, if you like. Section 196 supplies, and if it's returned, it's deemed not to be served. If it's sent by registered post, it's deemed not to be served, and so the notice hadn't been served in that particular case, and it surprised a lot of people, and we'll have to see. The final judgement. There's a lot of question marks. Obviously, we haven't seen the final, you know the the, the detailed version of this and you know that particular provision, it's worth checking if you're in the business of serving notices. But just because it says it's shall be served under section 196, the argument must be is that mandatory? Is that the only way of serving and does that, you know notice under in connection with this lease mean statutory notices or just notices within the lease itself? But you might want to wear them, so I can't believe it's correct. I don't know if it's gonna be an appeal. You might just serve by hand. Last known address and likes just to be sure. In the interim, I'd still do the I'd I'd look for that shall be served in accordance with Section 196 if there's some sort of thing that looks like it might be mandatory, but we'll have to. See the future. And that's another one.

Lizzie C
Thank you very much, Richard.

Richard Snape
My pleasure as always, Lizzie.