As the Easter weekend approaches, Matthew Hearsum reviews egg-xactly when party wall notices and awards are deemed to be served under the Party Wall etc. Act 1996.
The starting point is section 15 of the Party Wall Act which provides that documents may be served by post or, under the new section 15(1A), by email if the recipient has indicated they will accept service by electronic means.
In Freetown Limited y Assethold Limited the Court of Appeal explained that documents sent by post under section 15 are deemed to be served under section 7 of the Interpretation Act 1978 “…at the time at which the letter would be delivered in the ordinary course of post”.
But what is the “ordinary course of post”? In Harris v Lopen Group Ltd the Court of Appeal said that this was a question of fact in each case and would turn on the available evidence. Where there was clear evidence of service, or the absence of service, the Court will make a decision based on that evidence. But, where there is no or inadequate evidence the rules in practice direction (1985) 1 All ER 889 will apply, in particular where documents are sent by first class post they are deemed to be served the second working day after they were posted.
“Working days” are stated as being Monday to Friday, excluding any bank holiday. “Bank holidays” are listed in schedule 2 of the Banking and Financial Dealings Act 1971, which includes Easter Monday but does not include Good Friday; Good Friday and Christmas Day are not bank holidays, but public holidays under the common law.
So for the purposes of calculating the date of service notices or award you do not count Easter Monday, but you do include Good Friday.
In an ideal world there would be clear evidence of the date on which a document was received. But often this is not the case, particularly over Easter holidays, where many owners will go away for a few days and many offices will be closed, so the date on which the document arrived may not be known.