Errors in Service
Under limited circumstances, courts can allow proceedings to continue without formal service of documents. However, as recent cases demonstrate, judges are extremely cautious about exercising this discretion in residential landlord and tenant matters.
If you are a landlord or letting agent, this is a critical area of procedure you need to understand. Relying on the court to “rescue” defective service is a high-risk strategy.
Under the Civil Procedure Rules (CPR 6.16 and 6.28), courts have the power to dispense with service of documents, including notices in possession proceedings.
However, this is meant to apply only in genuinely exceptional circumstances. Recent case law shows courts treating applications to dispense with service with extreme caution and limited to circumstances where:
- the tenant’s whereabouts are genuinely unknown and cannot reasonably be ascertained; and
- all reasonable steps have been taken to serve but failed.
Applications to dispense with service are strictly controlled and granted sparingly. Courts view them as remedies of last resort, not casual corrections for procedural mishaps.
Errors in the Notice
While courts are strict on service, they have shown more flexibility when dealing with defects in the content of notices, thanks to the well-established Mannai principle.
This principle means if:
- If a notice contains clerical errors (e.g. the wrong date);
- A reasonable tenant could still understand its purpose and meaning;
- The notice may still be valid.
Whilst the Mannai principle offers a lifeline for minor errors in notices, it will not rescue defective service.
For landlords and agents, the safest route remains strict procedural compliance and early advice. If the notice is defective do not take the risk of going to court with hope. It will not work. If paperwork is defective, then re-serve before proceeding. The legal cost of obtaining possession do not allow for dismissal of a case and all the subsequent cost of a new application to court.
