Elim Court RTM Company Ltd v Avon Freeholds Ltd [2017] EWCA Civ 89

This decision concerned compliance with the statutory procedure that allows tenants to obtain the right to manage their building on a no-fault basis under the Commonhold and Leasehold Reform Act 2002. The tenant right to manage company, Elim Court RTM Company Ltd, was in technical breach of some of those rules; the Court of Appeal had to decide whether that therefore resulted in the failure of their application.

The 2002 Act has a two-stage process: invitation to participate; followed by a claim notice. The notice of invitation to participate must, under section 78(2), specify a place at which the articles of association of the RTM company may be inspected and ‘specify as the times at which they may be inspected periods of at least two hours on each of at least three days (including a Saturday or Sunday or both) within the seven days beginning with the day following that on which the notice is given’.

There is a prescribed form for the subsequent claim notice: it provides for it to be signed by ‘an authorised member or officer’ of the RTM company, although the Act and the statutory instrument itself are silent on this point.

Elim RTM Co Ltd served its invitation to participate: it specified that its articles of association could be inspected on a Monday, Tuesday and Wednesday (i.e. no weekend day was specified). The claim notice was signed by the director of the secretarial company. Furthermore, the claim notice was not served on one intermediate landlord, but was instead served on the occupiers of its flat.

As for the Saturday / Sunday issue, the Court of Appeal held that the notice of invitation must specify a day which includes either a Saturday or Sunday, or both.: they were not permissive. The invitation to participate was therefore defective. There was no dispute that the claim notice was not served on an intermediate landlord. The Court of Appeal held, however, that the signature was not defective.

As for the consequences of these procedural defects, the Court of Appeal referred to Osman v Natt [2015] 1 WLR 1536 where Etherton C had drawn a distinction between two broad categories of case:

• those cases in which the decision of a public body is challenged, often involving administrative or public law and judicial review, or which concern procedural requirements for challenging a decision whether by litigation or some other process; and

• those cases in which the statute confers a property or similar right on a private person and the issue is whether non-compliance with the statutory requirement precludes that person from acquiring the right in question.

This case fell into the second category, where ‘substantial compliance’ was not the applicable test: instead, the court has to interpret the notice to see whether it actually complied with the strict requirements of the statute, and if it did not, to hold the notice to be wholly valid or wholly invalid.

The Court of Appeal held that not every defect in a notice or in the procedure, however trivial, invalidates the notice. Etherton C had pointed out even if there is no principle of substantial compliance the court must nevertheless decide as a matter of statutory construction whether the notice is”wholly valid or wholly invalid”. In considering the question of validity, although the court should not inquire into the question whether prejudice had been caused on the particular facts of the actual case, that does not mean that prejudice in a generic sense is irrelevant. In all such cases, it is necessary to consider the words of the statute or contract, in the light of its subject matter, the background, the purpose of the requirement, if that is known or determined, and the actual or possible effect of non-compliance on the parties.

In this case, none of the suggested defects were sufficient to invalidate the notices. The appeal was therefore allowed.