A recent Supreme Court decision has potentially altered the entire position on the service of notices and other documents in property cases. A1 Properties (Sunderland) Ltd v Tudor Studios RTM Company Ltd [2024] UKSC 27 is primarily about the service of notices on freeholders by leaseholders who want to create Right to Manage (RTM) companies. However, its conclusions will have effects far beyond that.

In this case the RTM company had served a notice to exercise its right on some of the landlords and managers of the freehold, but not on all of them. So the case was not so much about defective notice as a total failure to serve notice at all. However, the Supreme Court has ended up proposing a new means of thinking about errors in the service and content of notices.

There have been a range of approaches adopted for the service of notices historically. The two main ones are characterised by the cases of Elim Court RTM Company Ltd v Avon Freeholds Ltd [2017] EWCA Civ 89 and Ravenseft Properties Ltd v Hall [2001] EWCA Civ 2034. These approaches had significant overlap. Elim held that the correct approach to dealing with a defect in a notice was to consider what the “intention of the legislature as to the consequences of non-compliance with the statutory procedures … in the light of the statutory scheme as a whole” was. So what did Parliament intend to happen if there was a mistake. In Ravenseft the proper consideration was whether the notice is “in the prescribed form or in a form "substantially to the same effect"?”. In other words did the notice achieve the key aim that Parliament intended notwithstanding the defects in it.

The two tests are aimed at slightly different problems. Elim is more concerned with incorrectly names parties whereas Ravenseft is more focused on notices which are broadly correct but where some element is missing or mis-stated.

The Supreme Court has endorsed a new approach. It is not dissimilar to the Elim approach but takes a broader focus. In A1 the approach was first to consider if Parliament had indicated a consequence for failure to comply. If it has then a more restricted view looking at the nature of the non-compliance and probably applying Ravenseft is likely to be appropriate. If no consequence for non-compliance has been laid out then the right approach is firstly “to look carefully at the whole of the structure within which the requirement arises” and secondly having don this to then consider “what consequence of non-compliance best fits the structure as a whole”. The Supreme Court then ran through the relevant legislation and held that the consequences of serving a notice on only some of the proper persons would render that notice voidable. Not void but potentially void depending on the actions of the parties. On that basis the decision in Elim was right but because the analysis that the Supreme Court laid out led to the conclusions in Elim. In this case it meant that the failure to serve the notice correctly was of no consequence because the party who had not had the notice served on them had not in fact complained about it.

This is likely to have a knock on effect elsewhere. There are lots of situations where Parliament has not been clear what should happen if a notice is defective or not served correctly. Some of the cases relating to these notices are likely to be reviewed now and will be reconsidered in the light of this decision.