Severance Case Study: re 88, Berkeley
In re 88, Berkeley Road, NW9
Rickwood v Turnsek and Another
[1971] Ch 648
Chancery Division
Plowman J.
Rickwood v Turnsek and Another
[1971] Ch 648
Chancery Division
Plowman J.
Joint Interest - Severance - Joint tenancy - Notice sent by recorded delivery - Receipt of notice denied - Whether sufficient notice of severance - Law of Property Act 1925 (15 16 Geo. 5, c. 20), ss. 36 (2), 196 (4).fn1
Section 196 (4) of the Law of Property Act 1925 provides:
"Any notice required ... by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, ... or other person to be served, by name at the aforesaid place of abode ... and if that letter is not returned through the post office undelivered ..."
The plaintiff and the deceased owned and lived in a freehold house, which was vested in them as joint tenants both legally and beneficially. In April 1968 the deceased decided to sever the joint tenancy and in May her solicitors sent the plaintiff, by recorded delivery, a notice of severance duly signed by the deceased. The Post office records showed that the letter containing the notice of severance had been accepted by the deceased during the plaintiff's absence from the house. The plaintiff did not acknowledge receipt of the letter and alleged that she had never received it. The deceased died in April 1969; and after her death the plaintiff discovered either a copy or the draft of the original notice of severance among the deceased's effects which she sent to her own solicitors.
On a summons by the plaintiff for a declaration that she was solely and beneficially entitled to the deceased's half-share of the property by survivorship:-
Held, that the provisions of section 196 (4) setting out the conditions under which notices under the Act of 1925 were deemed to have been served, applied to the giving of notice of severance under section 36 (2), with the effect that the notice of severance although not received by the plaintiff was sufficient notice for the purposes of section 36 (2) to sever the joint tenancy and that the plaintiff was not therefore entitled to the deceased's half-share of the property by survivorship.
Rex v Westminster Unions Assessment Committee [1917] 1 KB 832, DC applied.
Originating Summons
The plaintiff, Mrs Jessina Gladys Rickwood, lived with Miss Gladys Elizabeth Goodwin at 88, Berkeley Road, London, N.W.9, from 1955 until April 20, 1969, when Miss Goodwin died. The house had been bought by them jointly for GBP2,800 and was vested in them legally and beneficially as joint tenants. On June 20, 1968, the plaintiff married. Miss Goodwin, on May 2, 1968, signed a notice of severance of the joint tenancy drafted by her solicitors which they sent on May 3 with a covering letter requesting acknowledgment of receipt, by recorded delivery service, addressed to the plaintiff in her maiden name of Miss Eldridge and to her correct address. 88, Berkeley Rd., London, N.W.9. No acknowledgment of receipt was sent to the solicitors by the plaintiff but the Post Office records showed that the letter containing the notice of severance was received and signed for by Miss Goodwin on behalf of the plaintiff who was absent from the house. After Miss Goodwin's death in 1969, the plaintiff discovered a document which was either a copy or the draft of the notice of severance and sent it to her solicitors who in turn informed the defendants' solicitors of its existence.
By her will, Miss Goodwin appointed the first defendant, Helmut Turnsek, as her executor and the second defendant, Miss Sarah Ann Sally (known as Sister Veronica), as her residuary legatee.
On December 31, 1969, the plaintiff issued an originating summons asking for a declaration that she was solely and beneficially entitled to the fee simple of the property 88, Berkeley Road aforesaid and for delivery up of the land certificate thereof by the first defendant. Further facts are stated in the judgment.
I. H. Maxwell for the first defendant. The service of the notice in writing as required by section 36 (2) of the Law of Property Act 1925, in order to sever a joint tenancy, is deemed to have been served on the plaintiff even if there has been no actual delivery of the notice into the plaintiff's hands, provided the requirements of section 196 (4) have been satisfied. It is sufficient for the purposes of section 196 (4) that the written notice is sent by registered post, or since the Recorded Delivery Service Act 1962, by recorded delivery, to the addressee at his last known address, and is not returned through the post office undelivered. Service is deemed to be made at the time the letter would in the ordinary course of events be delivered.
E. F. R. Whitehead for the second defendant. The argument for the first defendant on notice of severance of a joint tenancy as required by section 36 (2) of the Law of Property Act 1925 is adopted. The time at which the joint tenancy is severed is unimportant but it is important that the notice of severance is served or deemed to be served because the notice works automatically to create the severance: see Megarry and Wade, Real Property, 3rd ed. (1966), p. 420, para. 3 and Palmer v Rich [1897] 1 Ch. 134. In the present case there had been sufficient service of the notice of severance. Hewitt v Leicester Corporation [1969] 1 WLR 855 is distinguishable because in that case a letter containing a notice to treat was sent by recorded delivery and returned by the post office marked "gone away," so that no notice could be deemed to have been served when it was known as a fact not to have been served at all: see per Lord Denning M.R. at p. 858. [Reference was made to Moody v Godstone Rural District Council [1966] 1 WLR 1085 and Reg v London Quarter Sessions Appeals Committee, Ex parte Rossi [1956] 1 QB 682.]
E. Ashley Bramall for the plaintiff. [The main submissions of counsel are summarised in the judgment (post, pp. 652F, 653B, D-F).]
I. H. Maxwell replied. The words of section 196 (4) of the Law of Property Act 1925 are quite plain and clear. Rex v Westminster Unions Assessment Committee [1917] 1 K.B. 832 supports the view of the need for certainty where a joint tenant wishes to sever the joint tenancy.
PLOWMAN J.
The question in this case is whether a joint tenancy in a property known as 88, Berkeley Road, London, N.W.9, which formerly subsisted between the plaintiff, Mrs Rickwood, and the late Miss Gladys Elizabeth Goodwin, was severed during the lifetime of the latter. Miss Goodwin had been a friend of the plaintiff's mother. She was a generation older than the plaintiff, and the first defendant is her executor and the second defendant her residuary legatee.
The facts of the case, in outline, are these. In 1944, the plaintiff and her mother went to live with Miss Goodwin in a flat at 94, Berkeley Road. In 1955, the plaintiff and Miss Goodwin bought number 88 at the price of GBP2,800. They provided the money which was required to purchase that house in equal shares and the property was transferred to them as joint tenants, both legally and beneficially. In 1959, the (plaintiff's mother died and the plaintiff herself went on sharing this house with Miss Goodwin. In 1968, Miss Goodwin decided to sever the joint tenancy: one reason for this seems to have been that the plaintiff was shortly going to get married and Miss Goodwin decided that she did not want the plaintiff to succeed to the whole interest in the property on her death. She took the view that it was for the plaintiff's husband to house her and that she, Miss Goodwin, in view of the plaintiff's marriage, was released from any obligation which she may have felt to the plaintiff's mother to ensure that the plaintiff would succeed to the house on her (Miss Goodwin's) death. She went to her solicitors - who were the firm of which the first defendant is a member and they advised her about the matter and drafted a notice of severance.
It appears that on May 2, 1968, Miss Goodwin signed the notice of severance which her solicitors had drafted, her signature being witnessed by a Mrs Buckton, and the document which she signed was addressed to the plaintiff by her maiden name, Miss Eldridge. It is in the following terms:
"I hereby give you notice of my desire to sever the joint tenancy in equity of and in the property described in the schedule hereto now held by you and me as joint tenants both at law and in equity,"
and then the schedule contains particulars of the property.
On the following day, May 3, Miss Goodwin's solicitors sent the notice of severance to the plaintiff, with a covering letter saying:
"We enclose herewith notice of severance of joint tenancy, on behalf of our client, Miss Goodwin, service of which would you please accept by post and kindly acknowledge safe receipt."
That letter with its enclosure was sent by recorded delivery service.
The plaintiff never did acknowledge receipt, because her evidence is that she never received the notice of severance. She has, in fact, always denied having received it. She continued to deny it even after it had been brought to her notice, or to the notice of her solicitors, that the notice of severance had been sent to her by recorded delivery, and after she had been shown a copy of the certificate of posting. Inquiries were then made of the Post office, and it emerged that this letter which had been sent by recorded delivery had indeed been delivered at 88, Berkeley Road but that it had been taken in and signed for by Miss Goodwin herself. The plaintiff says that she never received it, and the evidence is that the post always came after the plaintiff had gone off to work and while Miss Goodwin was there, and it was the habit of Miss Goodwin, if there were any letters for the plaintiff, to put them either on the mantelpiece or on the table so that she could pick them up when she came home. But, as I say, the plaintiff's evidence is that she never received this letter.
I have seen the plaintiff in the witness box and her evidence convinced me that she was speaking the truth. The evidence adduced on behalf of the defendants consists of certain hearsay evidence (which has recently become admissible under the Givil Evidence Act 1968) to the effect that Miss Goodwin had made statements to three other people to the effect that she, Miss Goodwin, had given this notice to the plaintiff and that she had flown into a temper when she got it, and there was talk about pots and pans being flung about and doors being slammed. These witnesses who deposed to these statements which Miss Goodwin had made were all, in my judgment, witnesses of truth. I think that Miss Goodwin undoubtedly did make these statements. Precisely why and how she came to make them, I do not know, but, as I say, I was convinced when I saw the plaintiff in the witness box that she was speaking the truth, and I accept her evidence.
In June 1968, the plaintiff was married, and on April 20, 1969, Miss Goodwin died. It was after her death that the question of the severance of joint tenancy came to light, and it came to light in a slightly curious manner. When the plaintiff was going through Miss Goodwin's papers in the house where they had lived together, she came across a copy of the draft notice of severance which had been sent to Miss Goodwin by her solicitors either a copy of the draft or the original draft itself and the plaintiff then handed that to her own solicitors, and her solicitors informed the defendants' solicitors of the existence of that document.
Those are the facts as they appear to me, and I must come now to certain questions of law that have been argued. It is submitted on behalf of the defendants that even if the plaintiff did not actually receive the notice of severance, nevertheless she must conclusively be presumed to have done so, and at this point I refer to two sections in the Law of Property Act 1925.
The first is in section 36 (2), the proviso to which is in the following terms:
"Provided that, where a legal estate (not being settled land) is vested in joint tenants beneficially, and any tenant desires to sever the joint tenancy in equity, he shall give to the other joint tenants a notice in writing of such desire or do such other acts or things as would, in the case of personal estate, have been effectual to sever the tenancy in equity, and thereupon under the trust for sale affecting the land the net proceeds of sale, and the net rents and profits until sale, shall be held upon the trusts which would have been requisite for giving effect to the beneficial interests if there had been an actual severance."
What I call attention to there are the words: "... shall give to the other joint tenants a notice in writing ..."
The other section is section 196 of the same Act. Section 196 (4) provides:
"Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned through the post office un-delivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered."
I should mention that, while section 196 refers to registered post, nevertheless, by the Recorded Delivery Service Act 1962, recorded delivery is equated with registered post for the purposes which I am considering.
Mr Bramall, on behalf of the plaintiff, made three submissions about section 196. First of all, he pointed out that section 196 (4) refers to notices "required or authorised by this Act to be served," and that, under the proviso to section 36 (2) a notice severing a joint tenancy is not required to be "served"; it is required to be "given"; and he submitted that there must be taken to be a distinction between "served" and "given," and that indeed section 196 does draw that distinction, because subsection (1) of the section says: "Any notice required or authorised to be served or given by this Act shall be in writing."
For my part, I am unable to accept this distinction which Mr Bramall seeks to draw. In the first place, it seems to me that, where one is considering a notice in writing, there can be no difference between "serving" the notice and "giving" the notice; and secondly I think that it may be possible to derive some support for that view from section 196 (5), which says:
"The provisions of this section shall extend to notices required to be served by any instrument affecting property executed or coming into operation after the commencement of this Act unless a contrary intention appears."
It seems to me it would be very odd if one were, for example, considering a lease which required notice either by lessor to lessee or lessee to lessor, and the efficacy of service was to be determined according to whether the lease provided for the notice being "served" or the notice being "given." I do not think that that distinction can really have any effect.
Mr Bramall's second submission was, if he will allow me to say so, an ingenious one. He pointed to the words in section 196 (4) - and I quote: "... if that letter is not returned through the post office un-delivered" - and he submitted that the facts of the present case showed that the letter was delivered into the hand of Miss Goodwin: in other words, it was really delivered to the sender, because the solicitors who sent it were Miss Goodwin's solicitors and her agents for this purpose, and that, since the letter was delivered into the hands of the sender, it was in effect returned through the Post Office un-delivered.
Again, I do not feel able to accept that submission. In my view, the words "... if that letter is not returned through the post office un-delivered" refer to the ordinary case of the Post office being unable to effect delivery at the address on the letter for some reason or other, such as that the addressee has gone away or the house is shut or empty. It does not, in my judgment, apply to a case like the present where the letter has in fact been delivered by the postman at the address to which it was sent.
The third submission which Mr Bramall made was to this effect, that where a section in an Act of Parliament is potentially creating an unjust situation, as would be the case here if the notice is to be taken as having been received by the plaintiff although she never received it, then the Act ought to be construed strictly, and that that involves strict proof that the relevant document - the letter containing the notice of severance, in this case - was in fact served. And Mr Bramall pointed out that Mr Bender, who was an assistant solicitor in the firm of solicitors who were Miss Goodwin's solicitors at this time and who was responsible for dealing with this matter, could not actually prove putting the notice of severance in the envelope with the covering letter before it was sent. In my judgment, the onus of proof on the defendants here is no higher than proof that, on the balance of probabilities, that was done; and I feel no difficulty in reaching the conclusion that, on the balance of probabilities, it was in fact done.
For those reasons, I cannot accept Mr Bramall's submissions on section 196 (4).
The question then arises: what is the effect of that section? Here, I think Rex v Westminster Unions Assessment Committee [1917] 1 K.B. 832 is of some importance. It was a case on a different Act, namely the Valuation (Metropolis) Act 1869, but there was a section in that Act, section 65, which was dealing with the service of orders and notices under the Act, and that section included the following:
"... They may also be served and sent by post, by a prepaid letter, addressed to such person, or to the office of such body or to their clerk, and, if sent by post, shall be deemed to have been served and received respectively at the time when the letter containing the same would be delivered in the ordinary course of post, and in proving such service or sending it shall be sufficient to prove that the letter containing the notice was properly addressed and prepaid and put into the post."
A Divisional Court had to consider the effect of that section, and Viscount Reading C.J. said, at p. 837:
"When the requirements of section 65 have been complied with, does that section create an irrebuttable presumption of due service, so that the prosecutors cannot raise the point that they have not been served with the notice? Section 65 of the Act first deals with the form of orders and notices and specific means whereby they may be served. It continues thus: [His Lordship read the latter part of section 65 and continued:] The assessment committee contended that the natural and ordinary meaning of this enactment is that if there has been sent by post a prepaid letter addressed to the person who is the occupier of the premises to be assessed the statute has been complied with, and the person cannot be heard to say that he has not in fact received the notice contained in the letter. on the other hand, the prosecutors contended that the words in their fair and natural meaning do no more than establish a prima facie case of service and are not strong enough to preclude them from proving that in fact the notice never was received by them. It is necessary to decide íthis point because I am satisfied that a prepaid letter was sent by the overseers within the prescribed time and also that the prosecutors did not in fact receive it."
Viscount Reading C.J. continued, at p. 838:
"On a consideration of this statute, I have come to the conclusion that once there has been proved the sending by post of a prepaid letter properly addressed containing a notice, the assessment committee have proved all that is necessary, and that there is an end of any question of service. ... A notice prepaid and addressed as directed by section 65 if sent through the post 'shall be deemed to have been served and received respectively at the time when the letter containing the same would be delivered in the ordinary course of post.' That provision applies to a case where in fact the notice has not been received, otherwise it has no meaning. The intention is to treat as a fact something which has not been established as a fact - even something which can be shown not to be a fact. The section continues: 'and in proving such service or sending it shall be sufficient to prove that the letter containing the notice was properly addressed and prepaid and put into the post.' In my view, when those conditions have been performed it must be taken as concluded that the notice has been served and received."
Now, as I read that, that was a conclusion upon the construction of the part of section 65 of the Valuation (Metropolis) Act 1869 that the court was considering, and that section, in my judgment, is in pari materia with section 196 (4) of the Law of Property Act 1925. It is perfectly true that Viscount Reading went on to say that his view of the construction was fortified by reference to the whole scheme of the Act but, as I read his judgment, it was based, as I said, upon the construction of section 65.
There is also one other case to which I should perhaps refer. It is a recent decision of the Court of Appeal in Hewitt v Leicester Corporation [1969] 1 WLR 855. That was a case where a letter containing a notice to treat was sent by recorded delivery service and returned marked "gone away," and the question was whether there had been sufficient service of it. Lord Denning M.R., in the course of his judgment, said, at p. 858:
"Once it appeared that the letter of May 20, 1965, was returned through the post marked 'gone away,' then it was quite plain that it was not served at all. We are not bound to 'deem' a notice to be served at a particular time, when we know that in fact it was not served at all."
Of course, I am not dealing with a case where the letter was returned through the Post Office because they had been unable to effect delivery. If I had been dealing with such a case, section 196 (4) would itself have answered the question which the Court of Appeal had to consider in Hewitt v Leicester Corporation [1969] 1 WLR 855 because in this case, unlike that case, the statute which I am considering is expressly dependent upon the condition "... if that letter is not returned through the post office un-delivered." So that I do not think that Hewitt v Leicester Corporation has any relevance to the present case.
In those circumstances, and with some regret having regard to my findings of fact, I feel bound to conclude that the notice of severance, even though never received by the plaintiff, was in fact sufficiently served for the purposes of section 36 (2) of the Law of Property Act 1925 with the consequence that the joint tenancy was severed during the lifetime of Miss Goodwin.
Originating summons dismissed.
Plaintiff to pay half the defendants' costs.
Section 196 (4) of the Law of Property Act 1925 provides:
"Any notice required ... by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, ... or other person to be served, by name at the aforesaid place of abode ... and if that letter is not returned through the post office undelivered ..."
The plaintiff and the deceased owned and lived in a freehold house, which was vested in them as joint tenants both legally and beneficially. In April 1968 the deceased decided to sever the joint tenancy and in May her solicitors sent the plaintiff, by recorded delivery, a notice of severance duly signed by the deceased. The Post office records showed that the letter containing the notice of severance had been accepted by the deceased during the plaintiff's absence from the house. The plaintiff did not acknowledge receipt of the letter and alleged that she had never received it. The deceased died in April 1969; and after her death the plaintiff discovered either a copy or the draft of the original notice of severance among the deceased's effects which she sent to her own solicitors.
On a summons by the plaintiff for a declaration that she was solely and beneficially entitled to the deceased's half-share of the property by survivorship:-
Held, that the provisions of section 196 (4) setting out the conditions under which notices under the Act of 1925 were deemed to have been served, applied to the giving of notice of severance under section 36 (2), with the effect that the notice of severance although not received by the plaintiff was sufficient notice for the purposes of section 36 (2) to sever the joint tenancy and that the plaintiff was not therefore entitled to the deceased's half-share of the property by survivorship.
Rex v Westminster Unions Assessment Committee [1917] 1 KB 832, DC applied.
Originating Summons
The plaintiff, Mrs Jessina Gladys Rickwood, lived with Miss Gladys Elizabeth Goodwin at 88, Berkeley Road, London, N.W.9, from 1955 until April 20, 1969, when Miss Goodwin died. The house had been bought by them jointly for GBP2,800 and was vested in them legally and beneficially as joint tenants. On June 20, 1968, the plaintiff married. Miss Goodwin, on May 2, 1968, signed a notice of severance of the joint tenancy drafted by her solicitors which they sent on May 3 with a covering letter requesting acknowledgment of receipt, by recorded delivery service, addressed to the plaintiff in her maiden name of Miss Eldridge and to her correct address. 88, Berkeley Rd., London, N.W.9. No acknowledgment of receipt was sent to the solicitors by the plaintiff but the Post Office records showed that the letter containing the notice of severance was received and signed for by Miss Goodwin on behalf of the plaintiff who was absent from the house. After Miss Goodwin's death in 1969, the plaintiff discovered a document which was either a copy or the draft of the notice of severance and sent it to her solicitors who in turn informed the defendants' solicitors of its existence.
By her will, Miss Goodwin appointed the first defendant, Helmut Turnsek, as her executor and the second defendant, Miss Sarah Ann Sally (known as Sister Veronica), as her residuary legatee.
On December 31, 1969, the plaintiff issued an originating summons asking for a declaration that she was solely and beneficially entitled to the fee simple of the property 88, Berkeley Road aforesaid and for delivery up of the land certificate thereof by the first defendant. Further facts are stated in the judgment.
I. H. Maxwell for the first defendant. The service of the notice in writing as required by section 36 (2) of the Law of Property Act 1925, in order to sever a joint tenancy, is deemed to have been served on the plaintiff even if there has been no actual delivery of the notice into the plaintiff's hands, provided the requirements of section 196 (4) have been satisfied. It is sufficient for the purposes of section 196 (4) that the written notice is sent by registered post, or since the Recorded Delivery Service Act 1962, by recorded delivery, to the addressee at his last known address, and is not returned through the post office undelivered. Service is deemed to be made at the time the letter would in the ordinary course of events be delivered.
E. F. R. Whitehead for the second defendant. The argument for the first defendant on notice of severance of a joint tenancy as required by section 36 (2) of the Law of Property Act 1925 is adopted. The time at which the joint tenancy is severed is unimportant but it is important that the notice of severance is served or deemed to be served because the notice works automatically to create the severance: see Megarry and Wade, Real Property, 3rd ed. (1966), p. 420, para. 3 and Palmer v Rich [1897] 1 Ch. 134. In the present case there had been sufficient service of the notice of severance. Hewitt v Leicester Corporation [1969] 1 WLR 855 is distinguishable because in that case a letter containing a notice to treat was sent by recorded delivery and returned by the post office marked "gone away," so that no notice could be deemed to have been served when it was known as a fact not to have been served at all: see per Lord Denning M.R. at p. 858. [Reference was made to Moody v Godstone Rural District Council [1966] 1 WLR 1085 and Reg v London Quarter Sessions Appeals Committee, Ex parte Rossi [1956] 1 QB 682.]
E. Ashley Bramall for the plaintiff. [The main submissions of counsel are summarised in the judgment (post, pp. 652F, 653B, D-F).]
I. H. Maxwell replied. The words of section 196 (4) of the Law of Property Act 1925 are quite plain and clear. Rex v Westminster Unions Assessment Committee [1917] 1 K.B. 832 supports the view of the need for certainty where a joint tenant wishes to sever the joint tenancy.
PLOWMAN J.
The question in this case is whether a joint tenancy in a property known as 88, Berkeley Road, London, N.W.9, which formerly subsisted between the plaintiff, Mrs Rickwood, and the late Miss Gladys Elizabeth Goodwin, was severed during the lifetime of the latter. Miss Goodwin had been a friend of the plaintiff's mother. She was a generation older than the plaintiff, and the first defendant is her executor and the second defendant her residuary legatee.
The facts of the case, in outline, are these. In 1944, the plaintiff and her mother went to live with Miss Goodwin in a flat at 94, Berkeley Road. In 1955, the plaintiff and Miss Goodwin bought number 88 at the price of GBP2,800. They provided the money which was required to purchase that house in equal shares and the property was transferred to them as joint tenants, both legally and beneficially. In 1959, the (plaintiff's mother died and the plaintiff herself went on sharing this house with Miss Goodwin. In 1968, Miss Goodwin decided to sever the joint tenancy: one reason for this seems to have been that the plaintiff was shortly going to get married and Miss Goodwin decided that she did not want the plaintiff to succeed to the whole interest in the property on her death. She took the view that it was for the plaintiff's husband to house her and that she, Miss Goodwin, in view of the plaintiff's marriage, was released from any obligation which she may have felt to the plaintiff's mother to ensure that the plaintiff would succeed to the house on her (Miss Goodwin's) death. She went to her solicitors - who were the firm of which the first defendant is a member and they advised her about the matter and drafted a notice of severance.
It appears that on May 2, 1968, Miss Goodwin signed the notice of severance which her solicitors had drafted, her signature being witnessed by a Mrs Buckton, and the document which she signed was addressed to the plaintiff by her maiden name, Miss Eldridge. It is in the following terms:
"I hereby give you notice of my desire to sever the joint tenancy in equity of and in the property described in the schedule hereto now held by you and me as joint tenants both at law and in equity,"
and then the schedule contains particulars of the property.
On the following day, May 3, Miss Goodwin's solicitors sent the notice of severance to the plaintiff, with a covering letter saying:
"We enclose herewith notice of severance of joint tenancy, on behalf of our client, Miss Goodwin, service of which would you please accept by post and kindly acknowledge safe receipt."
That letter with its enclosure was sent by recorded delivery service.
The plaintiff never did acknowledge receipt, because her evidence is that she never received the notice of severance. She has, in fact, always denied having received it. She continued to deny it even after it had been brought to her notice, or to the notice of her solicitors, that the notice of severance had been sent to her by recorded delivery, and after she had been shown a copy of the certificate of posting. Inquiries were then made of the Post office, and it emerged that this letter which had been sent by recorded delivery had indeed been delivered at 88, Berkeley Road but that it had been taken in and signed for by Miss Goodwin herself. The plaintiff says that she never received it, and the evidence is that the post always came after the plaintiff had gone off to work and while Miss Goodwin was there, and it was the habit of Miss Goodwin, if there were any letters for the plaintiff, to put them either on the mantelpiece or on the table so that she could pick them up when she came home. But, as I say, the plaintiff's evidence is that she never received this letter.
I have seen the plaintiff in the witness box and her evidence convinced me that she was speaking the truth. The evidence adduced on behalf of the defendants consists of certain hearsay evidence (which has recently become admissible under the Givil Evidence Act 1968) to the effect that Miss Goodwin had made statements to three other people to the effect that she, Miss Goodwin, had given this notice to the plaintiff and that she had flown into a temper when she got it, and there was talk about pots and pans being flung about and doors being slammed. These witnesses who deposed to these statements which Miss Goodwin had made were all, in my judgment, witnesses of truth. I think that Miss Goodwin undoubtedly did make these statements. Precisely why and how she came to make them, I do not know, but, as I say, I was convinced when I saw the plaintiff in the witness box that she was speaking the truth, and I accept her evidence.
In June 1968, the plaintiff was married, and on April 20, 1969, Miss Goodwin died. It was after her death that the question of the severance of joint tenancy came to light, and it came to light in a slightly curious manner. When the plaintiff was going through Miss Goodwin's papers in the house where they had lived together, she came across a copy of the draft notice of severance which had been sent to Miss Goodwin by her solicitors either a copy of the draft or the original draft itself and the plaintiff then handed that to her own solicitors, and her solicitors informed the defendants' solicitors of the existence of that document.
Those are the facts as they appear to me, and I must come now to certain questions of law that have been argued. It is submitted on behalf of the defendants that even if the plaintiff did not actually receive the notice of severance, nevertheless she must conclusively be presumed to have done so, and at this point I refer to two sections in the Law of Property Act 1925.
The first is in section 36 (2), the proviso to which is in the following terms:
"Provided that, where a legal estate (not being settled land) is vested in joint tenants beneficially, and any tenant desires to sever the joint tenancy in equity, he shall give to the other joint tenants a notice in writing of such desire or do such other acts or things as would, in the case of personal estate, have been effectual to sever the tenancy in equity, and thereupon under the trust for sale affecting the land the net proceeds of sale, and the net rents and profits until sale, shall be held upon the trusts which would have been requisite for giving effect to the beneficial interests if there had been an actual severance."
What I call attention to there are the words: "... shall give to the other joint tenants a notice in writing ..."
The other section is section 196 of the same Act. Section 196 (4) provides:
"Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned through the post office un-delivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered."
I should mention that, while section 196 refers to registered post, nevertheless, by the Recorded Delivery Service Act 1962, recorded delivery is equated with registered post for the purposes which I am considering.
Mr Bramall, on behalf of the plaintiff, made three submissions about section 196. First of all, he pointed out that section 196 (4) refers to notices "required or authorised by this Act to be served," and that, under the proviso to section 36 (2) a notice severing a joint tenancy is not required to be "served"; it is required to be "given"; and he submitted that there must be taken to be a distinction between "served" and "given," and that indeed section 196 does draw that distinction, because subsection (1) of the section says: "Any notice required or authorised to be served or given by this Act shall be in writing."
For my part, I am unable to accept this distinction which Mr Bramall seeks to draw. In the first place, it seems to me that, where one is considering a notice in writing, there can be no difference between "serving" the notice and "giving" the notice; and secondly I think that it may be possible to derive some support for that view from section 196 (5), which says:
"The provisions of this section shall extend to notices required to be served by any instrument affecting property executed or coming into operation after the commencement of this Act unless a contrary intention appears."
It seems to me it would be very odd if one were, for example, considering a lease which required notice either by lessor to lessee or lessee to lessor, and the efficacy of service was to be determined according to whether the lease provided for the notice being "served" or the notice being "given." I do not think that that distinction can really have any effect.
Mr Bramall's second submission was, if he will allow me to say so, an ingenious one. He pointed to the words in section 196 (4) - and I quote: "... if that letter is not returned through the post office un-delivered" - and he submitted that the facts of the present case showed that the letter was delivered into the hand of Miss Goodwin: in other words, it was really delivered to the sender, because the solicitors who sent it were Miss Goodwin's solicitors and her agents for this purpose, and that, since the letter was delivered into the hands of the sender, it was in effect returned through the Post Office un-delivered.
Again, I do not feel able to accept that submission. In my view, the words "... if that letter is not returned through the post office un-delivered" refer to the ordinary case of the Post office being unable to effect delivery at the address on the letter for some reason or other, such as that the addressee has gone away or the house is shut or empty. It does not, in my judgment, apply to a case like the present where the letter has in fact been delivered by the postman at the address to which it was sent.
The third submission which Mr Bramall made was to this effect, that where a section in an Act of Parliament is potentially creating an unjust situation, as would be the case here if the notice is to be taken as having been received by the plaintiff although she never received it, then the Act ought to be construed strictly, and that that involves strict proof that the relevant document - the letter containing the notice of severance, in this case - was in fact served. And Mr Bramall pointed out that Mr Bender, who was an assistant solicitor in the firm of solicitors who were Miss Goodwin's solicitors at this time and who was responsible for dealing with this matter, could not actually prove putting the notice of severance in the envelope with the covering letter before it was sent. In my judgment, the onus of proof on the defendants here is no higher than proof that, on the balance of probabilities, that was done; and I feel no difficulty in reaching the conclusion that, on the balance of probabilities, it was in fact done.
For those reasons, I cannot accept Mr Bramall's submissions on section 196 (4).
The question then arises: what is the effect of that section? Here, I think Rex v Westminster Unions Assessment Committee [1917] 1 K.B. 832 is of some importance. It was a case on a different Act, namely the Valuation (Metropolis) Act 1869, but there was a section in that Act, section 65, which was dealing with the service of orders and notices under the Act, and that section included the following:
"... They may also be served and sent by post, by a prepaid letter, addressed to such person, or to the office of such body or to their clerk, and, if sent by post, shall be deemed to have been served and received respectively at the time when the letter containing the same would be delivered in the ordinary course of post, and in proving such service or sending it shall be sufficient to prove that the letter containing the notice was properly addressed and prepaid and put into the post."
A Divisional Court had to consider the effect of that section, and Viscount Reading C.J. said, at p. 837:
"When the requirements of section 65 have been complied with, does that section create an irrebuttable presumption of due service, so that the prosecutors cannot raise the point that they have not been served with the notice? Section 65 of the Act first deals with the form of orders and notices and specific means whereby they may be served. It continues thus: [His Lordship read the latter part of section 65 and continued:] The assessment committee contended that the natural and ordinary meaning of this enactment is that if there has been sent by post a prepaid letter addressed to the person who is the occupier of the premises to be assessed the statute has been complied with, and the person cannot be heard to say that he has not in fact received the notice contained in the letter. on the other hand, the prosecutors contended that the words in their fair and natural meaning do no more than establish a prima facie case of service and are not strong enough to preclude them from proving that in fact the notice never was received by them. It is necessary to decide íthis point because I am satisfied that a prepaid letter was sent by the overseers within the prescribed time and also that the prosecutors did not in fact receive it."
Viscount Reading C.J. continued, at p. 838:
"On a consideration of this statute, I have come to the conclusion that once there has been proved the sending by post of a prepaid letter properly addressed containing a notice, the assessment committee have proved all that is necessary, and that there is an end of any question of service. ... A notice prepaid and addressed as directed by section 65 if sent through the post 'shall be deemed to have been served and received respectively at the time when the letter containing the same would be delivered in the ordinary course of post.' That provision applies to a case where in fact the notice has not been received, otherwise it has no meaning. The intention is to treat as a fact something which has not been established as a fact - even something which can be shown not to be a fact. The section continues: 'and in proving such service or sending it shall be sufficient to prove that the letter containing the notice was properly addressed and prepaid and put into the post.' In my view, when those conditions have been performed it must be taken as concluded that the notice has been served and received."
Now, as I read that, that was a conclusion upon the construction of the part of section 65 of the Valuation (Metropolis) Act 1869 that the court was considering, and that section, in my judgment, is in pari materia with section 196 (4) of the Law of Property Act 1925. It is perfectly true that Viscount Reading went on to say that his view of the construction was fortified by reference to the whole scheme of the Act but, as I read his judgment, it was based, as I said, upon the construction of section 65.
There is also one other case to which I should perhaps refer. It is a recent decision of the Court of Appeal in Hewitt v Leicester Corporation [1969] 1 WLR 855. That was a case where a letter containing a notice to treat was sent by recorded delivery service and returned marked "gone away," and the question was whether there had been sufficient service of it. Lord Denning M.R., in the course of his judgment, said, at p. 858:
"Once it appeared that the letter of May 20, 1965, was returned through the post marked 'gone away,' then it was quite plain that it was not served at all. We are not bound to 'deem' a notice to be served at a particular time, when we know that in fact it was not served at all."
Of course, I am not dealing with a case where the letter was returned through the Post Office because they had been unable to effect delivery. If I had been dealing with such a case, section 196 (4) would itself have answered the question which the Court of Appeal had to consider in Hewitt v Leicester Corporation [1969] 1 WLR 855 because in this case, unlike that case, the statute which I am considering is expressly dependent upon the condition "... if that letter is not returned through the post office un-delivered." So that I do not think that Hewitt v Leicester Corporation has any relevance to the present case.
In those circumstances, and with some regret having regard to my findings of fact, I feel bound to conclude that the notice of severance, even though never received by the plaintiff, was in fact sufficiently served for the purposes of section 36 (2) of the Law of Property Act 1925 with the consequence that the joint tenancy was severed during the lifetime of Miss Goodwin.
Originating summons dismissed.
Plaintiff to pay half the defendants' costs.
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