To Spam or Not to Spam- Statutory Notices and Service by Email
Property and Legal Thoughts - David Smith
A recent decision regarding taxi licensing has caught my eye, courtesy of a report by the excellent barristers at Francis Taylor Building who acted on the case. Given that I mostly write about property and housing matters you might wonder why I have suddenly developed an interest in taxi licensing. Sadly, I haven’t! But this decision has important implications across a range of local authority enforcement matters.
In this case Maidstone Council sought to revoke a taxi driver’s licence. They emailed him a notice to that effect rather than posting it. The notice went into the spam folder for the taxi driver’s email and so he did not get it for some time. As a result he missed the strict 21 day time limit for appealing such a revocation to the Magistrates. It was argued before the Magistrates and then before the High Court that the time limit had not stared to run until the email was actually seen by the taxi driver because it had not been properly served.
The means of service for local authority notices is set out in s. 233 of the Local Government Act 1972. Those provisions apply to service of a lot of statutory notices, including notices under the Housing Act 2004 such as notices for civil penalties and the like. My interest in this case may be more obvious now! S233 allows for service on a person or corporate entity by “delivering it to him, or by leaving it at his proper address, or by sending it by post to him at that address.” S233 does not say anything at all about email. Section 8 of the Electronic Communications Act 2000 allows ministers to modify any existing legislation by way of a statutory instrument to authorise or facilitate the use of electronic communications. That would include allowing for service by email. However, this has not been done in relation to taxi licensing or in relation to housing matters either, other than in relation to council tax and party walls. So it should not be relevant to this.
However, the High Court found that if there is a statutory means of service (which is what s233 is) then unless the statute excludes other means of service then ordinary service at common law is acceptable. Common law does allow for email service and the High Court held that the sorting of an email into a spam folder is not the fault of the local authority and is something done by the recipient’s email service over which the local authority has not control.
As I have indicated this decision obviously had in impact on this taxi driver but it also has implications for a large number of other areas, including notices in relation to housing matters under the Housing Act 2004. S246 of the 2004 Act specifies that notices from local authorities under the 2004 Act can be served using the provisions of s233. Like many local authorities I had assumed that this meant that no other means of service was acceptable, certainly not email. So if a notice of intent arrived too late to meet the deadline of six months since the offence ceased to be committed then I would push back on that point, even if the notice had been sent by email as well and had arrived in time. That was effective in the main and local authorities, no doubt taking the same view of the legislation that I was adopting withdrew the notices.
I am not suggesting that local authorities should use email instead of post to send notices. The court was not entirely enamoured of this approach. However, if notices are being sent by email and by post, as they often are, then the emailed notice, if sent first, will be the one that is the effective date the notice is served.
For agents and landlords this case demonstrates the need to be far more effective about email management. Managing spam is important and agents and landlords should be taking steps to ensure that emails from the local authority are not in their spam by placing those addresses on approved senders lists. If a notice is sent by email from a local authority then the courts are very likely to find that an agent or landlord got that notice, notwithstanding which folder it ended up in.