Case No: B5/2015/0243
Neutral Citation Number: [2017] EWCA Civ 150
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT in CENTRAL LONDON
HH Judge Baucher
Claim No. A00EC541

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 22 March 2017
Before :

LORD JUSTICE PATTEN
MRS JUSTICE PROUDMAN
and
SIR COLIN RIMER

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Between :

	THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF ISLINGTON
	Claimant/
Appellant	
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	RAYMOND DYER
	Defendant/
Respondent	

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Mr IAIN COLVILLE and Mr JAMES SANDHAM (instructed by the Law and Public Services Department of the London Borough of Islington) for the Appellant
Mr TIM BALDWIN and Ms JUSTINE COMPTON (instructed by Duncan Lewis Solicitors) for the Respondent

Hearing date : 23 February 2017

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Judgment
Lord Justice Patten : 
1.	This is an appeal by the London Borough of Islington (“the Council”) from an order of HH Judge Baucher made on 18 December 2014.  She allowed an appeal by Mr Raymond Dyer against a possession order made by District Judge Sterlini on 15 July 2014 in respect of a flat which he occupied at 97 Godfrey House, Bath Street, London, EC1 (“the Flat”).  The Flat had been let by the Council to Mr Dyer under a tenancy agreement dated 14 June 2013 which created an introductory tenancy as provided for in Chapter 1 of Part V of the Housing Act 1996 (“the Housing Act”). 
2.	The purpose of introductory tenancies is to provide what the Housing Act refers to as a trial period in which the landlord may determine the tenancy without having to establish the grounds for possession required in the case of a secure tenancy.  This gives a social landlord an opportunity to form a view about the suitability of the tenant against a background of historic anti-social behaviour without becoming subject to the restrictions imposed in respect of a secure tenancy.  The trial period is normally one year but can be extended for a further six months: see ss.125 and 125A.
3.	Although the statutory grounds for possession do not have to be satisfied, the tenant is given a measure of protection by s.128 of the Act which provides that:
“(1) The court shall not entertain proceedings for the possession of a dwelling-house let under an introductory tenancy unless the landlord has served on the tenant a notice of proceedings complying with this section.
(2) The notice shall state that the court will be asked to make an order for the possession of the dwelling-house.
(3) The notice shall set out the reasons for the landlord's decision to apply for such an order.
(4) The notice shall specify a date after which proceedings for the possession of the dwelling-house may be begun.
The date so specified must not be earlier than the date on which the tenancy could, apart from this Chapter, be brought to an end by notice to quit given by the landlord on the same date as the notice of proceedings.
(5) The court shall not entertain any proceedings for possession of the dwelling-house unless they are begun after the date specified in the notice of proceedings.
(6) The notice shall inform the tenant of his right to request a review of the landlord's decision to seek an order for possession and of the time within which such a request must be made.
(7) The notice shall also inform the tenant that if he needs help or advice about the notice, and what to do about it, he should take it immediately to a Citizens' Advice Bureau, a housing aid centre, a law centre or a solicitor.”
4.	A tenant who wishes to seek a review of the decision to seek possession must make a request within 14 days of the date of service of the notice of proceedings: see s.129(1).  In that event the landlord is obliged to carry out a review and notify the tenant of the result before the date specified in the notice of proceedings as the date after which possession proceedings may be begun: see s.129(5).  If a notice is served in compliance with s.128 and there is no change following a review in the landlord’s decision to seek possession then the Court must order possession and, on the execution of the order, the introductory tenancy comes to an end: see s.127.
5.	In the present case Mr Dyer was served with a notice of proceedings under cover of a letter of 18 November 2013.  The notice stated that action was being taken due to arrears of rent and also because of an assault on a female visitor in the lobby area of the block of flats, which took place on 6 September 2013.  The notice gave 23 December 2013 as the date after which possession proceedings would be begun.
6.	Mr Dyer requested a review of the decision challenging the allegations of assault.  He identified nominees to attend the review on his behalf as he was in custody on 25 November and a review meeting was arranged for 20 December 2013.  Mr Dyer failed to attend the meeting and the review proceeded on the basis of the documentary material.  By letter dated 23 December Mr Dyer was informed that following the review the Council had confirmed its earlier decision to seek possession.  Possession proceedings were issued on 1 February 2014.
7.	In his defence Mr Dyer did not contest the allegation of assault but he did take a point about the validity of the s.128 notice.  He contended that the provisions of s.128(7) had not been complied with because the statement informing the tenant that if he needed help or advice about the notice he should take it to a Citizens' Advice Bureau or one of the other agencies referred to was not included in the notice.
8.	The District Judge rejected this line of defence and made an order for possession.  But on appeal Judge Baucher held that the notice was invalid for the reasons pleaded in the defence and allowed the appeal.  The Council now appeals.  Longmore LJ gave permission for a second appeal because the circumstances and issues raised in this case may have a wider application.
9.	The letter of 18 November 2013 under cover of which the Council served the s.128 notice was headed: “Re Notice of Proceedings for Possession of Introductory Tenancy”.  The letter began with a paragraph in bold type stating:
“With this letter is a formal notice which tells you that Islington Council may, in 35 days’ time, apply to Clerkenwell and Shoreditch County Court to get a Court Order to repossess your home.”
10.	The letter then goes on to explain the reasons for the service of the notice, the tenant’s right to a review, and his ability to seek legal advice from a law centre, Citizens' Advice Bureau or a solicitor.  It is not, however, suggested on behalf of the Council that this letter was or was part of the s.128 notice.  The notice, they contend, was comprised by the other documents served with the letter which consisted of a two-page ‘Notice’ signed and dated 18 November 2013 and a two-page ‘Information Leaflet’ which accompanied it.  I shall refer to those documents using those terms.
11.	The first of these documents is headed:
“LONDON BOROUGH OF ISLINGTON
THIS NOTICE IS THE FIRST STEP TOWARDS REQUIRING YOU TO GIVE UP POSSESSION OF YOUR DWELLING.  YOU SHOULD READ IT, AND ALL THE NOTES, VERY CAREFULLY.
HOUSING ACT 1996, SECTION 128
Notice of proceedings for possession of Introductory Tenancy”.
12.	It is addressed to Mr Dyer, states the reasons for the action being taken and, as in the accompanying letter, gives the 23 December 2013 as the date after which possession proceedings may be began.  On the second page is a paragraph informing Mr Dyer of his right to seek a review of the decision.  It does not, however, include the information required under s.128(7).  That is contained in the Information Leaflet served with the Notice which is headed:
“INFORMATION LEAFLET (to accompany Notice of Proceedings for Possession of Introductory Tenancy)”
	and then goes on to state:
“i.	A Notice of Proceedings for possession of Introductory Tenancy has been served against you.  This is the first step in the legal procedure to recover possession of your home.
ii.	If you need advice about this Notice, and what you should do about it, take it as quickly as possible to a Citizens' Advice Bureau, a Housing Aid Centre or a Law Centre, or to a Solicitor.  You may be able to receive Legal Aid but this will depend on your personal circumstances.”
13.	The proceedings against Mr Dyer were consolidated by the District Judge with another action involving an introductory tenancy where the same documentation had been issued (London Borough of Islington v. Giama).  Judge Baucher gave judgment in that case on 3 December 2014 and adopted the same reasoning in a short judgment in the present proceedings which she gave on 18 December 2014.  She held that the requirement to include the s.128(7) information in the notice was mandatory and that the s.128 notice did not include the ‘Information Leaflet’, notwithstanding the reference to “all the notes” in the Notice itself and the fact that both documents were served together under cover of the same letter.  She said that it would have been a simple matter for the Council to have included an additional paragraph in the Notice document itself and that her view that the Information Leaflet was not part of the Notice was confirmed by the language of both documents:
“I am further satisfied my interpretation in that regard is correct from the very introduction to the Notice itself.  At p158 it states this: “This Notice is the first step towards requiring you to give up possession of your dwelling.  You should read it and all the notes very carefully”.  In short it is directing the person who is reading it to ‘it’ – ‘it’ being what?  “This Notice”.  It is too wide a construction to suggest that one is then to somehow construe “the notice” and the notes as the notice for the purposes of compliance with s.128(7).”
14.	Like the judge I propose to proceed on the assumption that the provisions of s.128(7) are mandatory.  The judge’s construction of the two documents and in particular of the word ‘it’ which is used in them has merit at a purely semantic or literal level.  I accept that as a matter of drafting the ‘Notice’ comprises only the Notice document and that ‘it’ is separately identifiable from the Information Leaflet which accompanied it.  Moreover, the Information Leaflet in the two paragraphs quoted earlier refers to a notice of proceedings in terms of a separate document and is obviously referring to the Notice document.  But the question for us is whether, as matter of statutory construction, a notice under s.128 may be comprised in more than one document and, if so, whether the documents in this case satisfied the requirements of the statute.
15.	There is no prescribed form for a s.128 notice and so the starting point has to be whether the document or documents relied on can reasonably be described as a notice.  In order to do so they have to give the tenant notice of the intended proceedings in compliance with the section: see s.128(1).  To comply with the section the notice must contain the other information which s.128 prescribes.  There is nothing in s.128 which limits the notice to a single page or a single document and in my view no such restriction can be spelt out of the statute.  It will therefore be a question of objective fact in every case whether the documents relied on do or do not form part of the notice.
16.	The judge in my view was wrong to attach so much importance to the way in which the relevant documents were drafted and to the nomenclature used in them in deciding whether the Information Leaflet could be treated as part of the notice for the purposes of s.128.  Although the Council called one document the ‘Notice’ and the other an ‘Information Leaflet’, that cannot override the substance of the documents or be determinative of the statutory question.  What one needs to ask is whether, from an objective point of view, both documents were intended to and did perform the function of a s.128(1) notice.  If they did then the labels which the Council placed upon them are not the end of the matter.  Here the ‘Notice’ document directed the tenant in terms not only to that document but also to the notes in the Information Leaflet and the Information Leaflet stated that it was intended “to accompany Notice of Proceedings”.  The language used falls short of an express incorporation of the contents of the Information Leaflet into the Notice document.  Had it done so it would have put the matter beyond argument.  But any reasonable tenant receiving the letter and the documents it enclosed would, I think, have realised that he needed to read the contents of both documents together in order to understand the action which the Council was proposing to take and in my view, looked at objectively, the two documents did function together as the notice for the purposes of s.128 even though only one of them was in fact called the ‘Notice’.
17.	There is no direct authority on the point in issue in relation to s.128.  But in other statutory contexts the courts have been prepared to treat more than one document as constituting the relevant notice for the purpose of satisfying the statutory requirements about its contents.  In City of London Corp v Devlin [1997] 29 HLR 58 this Court had to consider whether the landlord had served a valid notice under s.83 of the Housing Act 1985 which was the pre-requisite to the commencement of proceedings for possession in relation to a secure tenancy.  According to the Secure Tenancies (Notices) Regulations 1987/755 the notice had to be in a prescribed form or in a form substantially to the same effect.  The prescribed form provided for the notice to be signed on behalf of the landlord but the notice that had been served did not include the signature of the director of housing.  The notice had, however, been served under cover of a letter from the City’s estate office and this was accepted as sufficient to complete the statutory formalities. 
18.	It seems to me that this Court must by necessary implication have accepted that the letter, although a separate document from the notice as such, could be treated as one with the notice for the purpose of satisfying the requirements of the regulations.  By parity of reasoning, I can see no reason in principle why the Information Leaflet should not be treated as part of the notice required to be served under s.128 if the reasonable recipient would have understood that they were intended to be read together.  
19.	I have for these reasons reached a different conclusion from the judge and I would allow the Council’s appeal. 
Mrs Justice Proudman :
20.	I agree.
Sir Colin Rimer :
21.	I also agree.