Court of Appeal rules on the requirements of a valid notice to end an introductory tenancy

Thursday 23 March 2017

Tim Baldwin leading Justine Compton appeared for the Respondent in a second appeal on a point of public importance in the case of London Borough of Islington v Dyer [2017] EWCA Civ 150 which was handed down on the 22 March 2017.

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There was no previous legal authority on the issue as to what comprises a lawful notice given pursuant to section 128 Housing Act 1996 to end an introductory tenancy. On a second appeal the Court of Appeal ruled that a notice served by a landlord on a tenant for the purposes of the Housing Act 1996 s.128 could be comprised in more than one document. There was no reason why an accompanying information leaflet should not be treated as part of the notice if the reasonable recipient would have understood that the documents were intended to be read together.

The history of the case commenced in the Clerkenwell and Shoreditch County Court where this case was joined with the case of London Borough of Islington v Giama.

Islington has granted introductory tenancies to Mr Giama and Mr Dyer and had sought to end them on the basis of allegations of nuisance antisocial behaviour and rent arrears. Mr Giama had not sought a review but Mr Dyer had, but those nominated to represent him at the review had not attended.

Both claims were defended on the basis that the notice served was defective in that it did not contain the mandatory requirement specified in section 128(7) and that in any event the claim for possession was not proportionate under Article 8.

The Local authority maintained that additional documents served with the document identified as “the notice” comprised the notice for the purposes of s 128 but in his defence and evidence Mr Giama disputed he had received the documents other than the document called “the notice”.

On the 15 July 2014 DJ Sterlini on hearing the case ruled that, on the balance of probabilities, Mr Giama had received all documents with the document called “the notice”, and ruled against Mr Giama and Mr Dyer on the validity of the notice and breach of Article 8 and made a possession order. This ruling was appealed to the Central London County Court, in a joint appeal, where on the 11 December 2014 HHJ Baucher allowed Mr Giama’s appeal and ruled that DJ Sterlini was wrong in law as to his interpretation of what comprised the notice for the purposes of section 128 such that the notice had to be one single document with all the mandatory requirements specified in it. On the 18 December 2014 HHJ Baucher applied her ruling to Mr Dyer’s case (see Legal Action Magazine May 2015, page 44). In any event both DJ Sterlini and HHJ Baucher in their rulings were critical of the form of notice used by Islington in these cases.

In response to HHJ Baucher’s decision the London Borough of Islington issued a second appeal to the Court of Appeal on Dyer but not Giama and as a result Mr Giama became a secure tenant of Islington. It transpired that Islington were able to execute a warrant for eviction prior to the conclusion of Mr Dyer’s appeal before HHJ Baucher. Lord Justice Longmore gave permission on a point of principle as to whether a lawful notice under section 128 Housing Act 1996 could be comprised of more than one document. The Court of Appeal determined it was.

Although the case was a loss for the Respondent, Tim Baldwin said after the judgment:

It was important that this issue be resolved and it is notable that following the hearing before DJ Sterlini in 2014 the London Borough of Islington changed their form of 128 notice to comprise a single document including the missing mandatory requirements set out in s 128 and to expressly refer to inclusion of the associated document into the form of notice.

 “The risks of having multiple documents comprising a notice were exemplified in Mr Giama’s case, which was not appealed, where there was a protracted and difficult hearing as to whether Mr Giama had been served with other documents given he did not exercise his right of review”.

 “Further it is likely there will be a greater use of introductory tenancies by local authorities and their time limit has been extended from 1 year to 5 years under schedule 7 of Housing and Planning Act 2016. Accordingly as there is no specified form of this notice, then given this judgment it would be useful for Parliament to specify a form of notice by regulations given the limited protection afforded to tenants on right of review once such a notice is served to ensure they can be notified of and effectively exercise their legal rights to challenge any claim for eviction”.

Tim Baldwin and Justine Compton are members of the Housing Team at Garden Court Chambers and were instructed by David Head and Siva Sivapunniyam of Duncan Lewis Solicitors. Edward Fitzpatrick and Stephen Marsh were also instructed by Duncan Lewis in other important steps in the litigation.

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