Case No: CC/2001/APP/0774

Neutral Case Citation Number: [2002] EWHC 925 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 13th May 2002

B e f o r e :

THE HONOURABLE MR JUSTICE PATTEN
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	WX Investments Limited	Claimant	
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	Khalida Begg	Defendant	
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	Peter J. Fraser	Part 20 Defendant	

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Mr. M. Loveday (instructed by Vizard Oldham for the Claimant)
Mr. C. King (instructed by Freeman Box for the Defendant)
Mr. P. Clark (instructed by Plexus Law for the Part 20 Defendant)

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Judgment
Mr Justice Patten:

Introduction

1	This is an appeal by the Claimant, WX Investments Limited, against the order of His Honour Judge Cowell made in the Central London County Court on 27th April 2001 dismissing its claim in this action.  It concerns the rent payable in respect of premises at 123 St. John’s Hill , London, SW11.  These premises are let to the Defendant, Dr. Khalida Begg, as a doctor’s surgery under a lease dated 12th February 1990.  The lease was granted for a term of 20 years from and including 25th December 1989 at an annual rent of £15,000 subject to an upwards only review after every fourth year of the term.  The rent review clause provides for the landlord to serve on the tenant what is described as a rent notice specifying the amount of the new rent payable with effect from the relevant date of review.  The tenant may within 14 days after receipt of this rent notice serve on the landlord a counter notice specifying the rent which the tenant is willing to pay from the review date.  If no such counter notice is served within the 14 day period then the rent specified in the landlord’s rent notice becomes the rent payable from the review date.  If a counter notice is served within the 14 days the lease provides for the parties to attempt to agree the new rent and in the absence of agreement for the rent to be determined by a surveyor acting either as an expert or (if the landlord requests) as an arbitrator.  Time is made expressly of the essence in relation to the 14 day period for the service of the counter notice.

2.	Clause 6 of the lease provides as follows:

“6. This Deed shall incorporate the provisions as to notices contained in Section 196 of the Law of Property Act 1925 as amended by the Recorded Delivery Service Act 1962.”
The lease therefore incorporates into and applies to the provisions of the rent review clause the following parts of s196:

“(3) Any notice required or authorised by this Act to be served shall be sufficiently served if it is left at the last-known place of abode or business in the United Kingdom of the lessee, lessor, mortgagee, mortgagor, or other person to be served, or, in case of a notice required or authorised to be served on a lessee or mortgagor, is affixed or left for him on the land or any house or building comprised in the lease or mortgage, or, in case of a mining lease, is left for the lessee at the office or counting-house of the mine. 
(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned through the post-office undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.”
For the reasons which I shall come to shortly it is the interpretation and application of s196(4) which is a central issue on this appeal.

3.	On 22nd September 1997 the Claimant’s predecessor in title as landlord, Long Acre Securities Limited, served a rent notice on Dr. Begg specifying a new rent of £19,500 per annum with effect from 25th December 1997.  The notice was served by recorded delivery by the landlord’s agent, Mr. John Broomfield, who practices on his own account as a surveyor and valuer from premises at 110 New Bond Street, London, W1 under the name of John Broomfield and Company.  It is common ground that the 14 day period for the service of the counter notice expired on Monday 6th October 1997.

4.	Upon receipt of the rent notice Dr. Begg faxed a copy to Mr. Richard Dawson of Charles Fraser Flemming Gibson MacNeil Limited, a firm of surveyors with premises in Reigate, seeking his advice about the proposed new rent.  Mr. Dawson had previously acted for Dr. Begg in connection with the property in St. John’s Hill.  He passed the letter to a colleague, Mr. Peter Fraser, who is the Part 20 Defendant.  Mr. Fraser advised Dr. Begg in a letter dated 23rd September 1997 that there were grounds for challenging the rent increase and offered to act on her behalf.  He also told her that it would be necessary to serve a counter notice and enclosed a copy of the counter notice which he had prepared to send to John Broomfield & Company at their address in New Bond Street.  Dr. Begg heard nothing further until she received a letter dated 28th October 1997 from CHP Management Limited enclosing a memorandum of rent increase to the sum of £19,500 with effect from 24th December on the basis that no counter notice had been served in time.

5.	The judge found (and it is not in dispute before me) that Mr. Fraser sent the counter notice to John Broomfield and Company by First Class recorded delivery on 24th September 1997.  It was not returned undelivered.  What happened was that on the morning of 25th September 1997 two attempts were made to deliver the counter notice.  Mr. Broomfield’s office does not open until 9:30a.m. and he is frequently out of the office.  He employs one member of staff, a secretary, but she frequently arrived late.  On both occasions when the postman called the office was closed and in accordance with usual practice the letter containing the counter notice was therefore returned to the delivery office in New Oxford Street at about 10:50a.m..  A further attempt was then made to deliver it on 30th September.  This was a Tuesday.  The postman attempted to deliver the notice at 9:05a.m. and again found the office was closed.  On this occasion (unlike the first) he left a P739 “When you were out” card which stated in terms that the item of mail would be kept for one week before being returned to the sender.  To prevent this it could either be collected from the delivery office on production of the card or would be re-delivered if the card was returned to the delivery office with a new delivery date entered in the appropriate box.  On 30th September Mr. Broomfield completed the P739 card requesting re-delivery on 10th October.  The counter notice was delivered to him and accepted at 9:30a.m. on that day.

6.	Dr. Begg declined to pay rent at the increased rate of the £19,500 per annum and on 5th November 1999 Long Acre Securities Limited issued proceedings in the Central London County Court for the recovery of the arrears of rent and interest.  A defence was filed on 20th December 1999 denying liability for the arrears on the ground that when the attempt was made to deliver the counter notice on 30th September staff at Mr. Broomfield’s office refused to accept delivery because Mr. Broomfield was absent on holiday and only he was authorised to sign for recorded delivery items.  This allegation was based on inaccurate information obtained from the Post Office which was not substantiated at the trial. The defence also contained a Part 20 claim against Mr. Fraser.  A defence to this claim was served by Mr. Fraser largely adopting the defence of Dr. Begg.

7.	On 3rd May 2000 District Judge Hasan directed the trial of a preliminary issue as to whether a valid counter notice had been served.  Given that on the pleadings as they stood this was the only real issue in the action it is difficult with respect to the District Judge to see what purpose this order was intended to achieve.  In any event the trial of the preliminary issue took place before His Honour Judge Cowell on 14th and 15th March 2001.  The learned judge heard evidence from Mr. Fraser and Mr Broomfield together with a witness from the Post Office.  At the end of the hearing he gave an ex tempore judgment in which he made the findings of fact about the delivery of the counter notice to which I have already referred.  More controversially however he also found that when filling in the date of 10th October on the P739 card Mr. Broomfield knew that the item to which the card related might very well be the counter notice from Dr. Begg which to his knowledge had to be served by 6th October.  By specifying 10th October he therefore, in the judge’s words, ensured that the letter would not be returned to Dr. Begg or its sender and would arrive out of time.  In reaching this conclusion Judge Cowell rejected Mr. Broomfield’s explanation that as at 30th September he believed that he might be going away to Ireland and therefore chose 10th October to avoid any clash with his holiday plans.  The judge described this evidence as a dishonest excuse.  Mr. Broomfield in fact remained in London in the week beginning 29th September and during the following week.

8.	Notwithstanding the view which he formed of Mr. Broomfield’s actions in relation to the choice of the 10th October date Judge Cowell held that a valid counter notice had not been served within the 14 day period permitted by the lease.  Following the decision of Scott J in Stevenson and Sons v. Orca Properties Limited [1989] 2 EGLR 129 he construed the phrase “in the ordinary course be delivered” in s196(4) of the Law of Property Act as requiring (in cases of recorded delivery) the signing of a receipt by an available recipient.  On the facts found by him this did not occur earlier than 10th October.  He therefore gave judgment for the Claimant on the preliminary issue.  However on the following day, before any order had been drawn up, the learned judge sent to both counsel a memorandum raising the question whether the Claimant was, to use his words, precluded from relying upon the late delivery of the counter notice by the conduct of Mr. Broomfield in selecting 10th October as the delivery date.  The issue was he said:

“a wider question than simple validity.  It is a question which depends on the facts as found and upon the law.  I made no decision on that question.  It seems to me that it is my duty to make a decision on the question.  It would not be appropriate for that matter to be left to a trial because the relevant facts were all in issue before me.  As between the claimant and the defendant there appears to me to be no other question to be determined at a trial and any reference I made at the conclusion of my judgment to a trial may have left the parties wondering what a trial will be about.  Upon further consideration of the pleadings it seems to me that there is no other question.”

9.	Judge Cowell was of course correct in observing that at the conclusion of the preliminary issue nothing else remained to be tried.  The point raised in the memorandum to counsel is an issue which goes to the validity of the counter notice and ought to have been raised, if at all, at the hearing held on 14th and 15th March.  What the learned judge was inviting the parties to do was to address further argument as to whether Mr. Broomfield’s conduct in some way estopped or otherwise prevented the landlord from relying on the provisions making time of the essence for the service of the counter notice.  This was articulated in a letter from the judge’s clerk of 19th March 2001 in which their attention was drawn to certain paragraphs in Chitty on Contracts which deal with the principle that no one should be entitled to rely upon their own wrong or breach of duty in order to resile from a contract or to take advantage of a beneficial term.

10.	A renewed hearing before Judge Cowell was fixed for 19th April 2001. Prior to that date the defendant amended her defence to plead the facts as found by the judge at the hearing on 14th and 15th March and in a new paragraph 12 alleged that it was the claimant’s own conduct (through Mr. Broomfield) which had prevented Mr. Fraser from serving the counter notice in time.  She relied upon and pleaded the principle raised by the judge that no party ought to be allowed to benefit from its own wrong doing as estopping the landlord from asserting that the counter notice had not been served in time.  Judge Cowell gave permission for the amendment and also permitted the Part 20 Defendant to appear by counsel at the hearing on 19th April.

11.	One of the obvious difficulties about a judge suggesting new lines of argument to the parties at or after a hearing is that he risks being accused of entering the arena on behalf of one side.  This was indeed the impression said to have been given to the Claimant and its advisors and the hearing on 19th April began with an application by the landlord’s counsel, Mr. Loveday, for the judge to recuse himself on grounds of bias.  Judge Cowell declined to do so and no appeal has been pressed before me against that refusal.  I need therefore say no more about it.  On the issue now raised by paragraph 12 of the amended defence Judge Cowell held that it was appropriate to imply a term into the lease that the landlord must be “willing and reasonably able to receive a counter notice and take reasonable steps to receive any counter notice which he knows or ought to appreciate is sought to be given”.  He recognised that in order to apply the principle pleaded in paragraph 12 of the amended defence it was necessary to identify the breach of a relevant legal duty on the part of the landlord.  The conduct of Mr. Broomfield had to be shown to be in breach of a term of the lease for it to become a bar to the Claimant’s reliance on the provisions making time of the essence for the service of counter notice.  Applying the reasoning set out in the decision of the House of Lords in Alghussein Establishment v. Eton College [1988] 1 WLR 587 Judge Cowell concluded that a breach by Mr. Broomfield of the implied term requiring him (on behalf of the landlord) to take reasonable steps to accept delivery of the counter notice precluded the Claimant from relying upon the failure of Dr. Begg to serve her counter notice in time.

12.	Given the premise of a breach of the implied term about accepting delivery the conclusion reached by the learned judge seems to me to be fully in accordance with the statement of the law set out in the speech of Lord Jauncey in the Alghussein case that:
“A party who seeks to obtain a benefit under a continuing contract on account of his breach is just as much taking advantage of his own wrong as is a party who relies on his breach to avoid a contract and thereby escape his obligations.”

and there has been no serious challenge to that on this appeal. But the premise of the implied term on which that conclusion is founded forms the main plank of the Claimant’s appeal.  In essence two points are taken. First it is said that the learned judge was wrong to make the adverse findings of fact against Mr. Broomfield in relation to the dating of the P739 card.  These findings were not foreshadowed in the pleaded defence and were based on a cross examination which never put to Mr. Broomfield the allegations which the judge found to have been made out.  Secondly it is said that there was no proper basis upon which to imply the term which Judge Cowell founded himself upon.  In response to this the defendant, Dr. Begg, seeks to support the decision of the judge.  The Part 20 Defendant, Mr. Fraser, adopts the same position but has also received permission to serve a respondent’s notice raising additional grounds for upholding the dismissal of the landlord’s claim.  Chief amongst these is a challenge to Judge Cowell’s decision given at the hearing of the preliminary issue that for the purposes of section 196(4) of the Law of Property Act 1925 the counter notice had not been served until its actual receipt on 10th October 1997.  Dr. Begg contends that the judge gave too broad an application to the decision of Scott J in Stephenson & Son v. Orca Properties.  If necessary I am invited to refuse to follow that decision.  Alternatively it is said that on the judge’s findings of fact Mr. Broomfield deliberately evaded service of the counter notice and must be deemed to have been served with it on or soon after 30th September 1997.

The grounds of appeal

(1)	s. 196(4)

13.	Logically and for ease of exposition it is convenient to begin with the challenge by the Part 20 Defendant to Judge Cowell’s construction of s196(4).  Section 196 replaced (with no significant amendments) the provisions of s.67 of the Conveyancing Act 1881.  It apples to notices in writing and permits such notices to be served by being left at the lessor’s last known place of abode or business (s196(3)).  As an alternative to this a notice may also be served by being sent to the lessor or other person to be served by post either in a registered letter or by recorded delivery.  Section 196(4) goes on to provide that such a letter sent to the lessor’s (or in this case his agent’s) place of business or office is “sufficiently served” if that letter is not returned through the post office undelivered.  All those conditions were satisfied in the present case.  The sub-section then goes on to deal with the time of service and it is this element which is critical in the present case.

14.	Service on a lessor by either registered post or recorded delivery is “deemed to be made at the time at which the registered letter would in the ordinary course be delivered”.  “Ordinary course” is obviously a shorthand for “ordinary course of post”. Statutory provisions deeming service of notices and other communications by specified means are not confined to the 1925 property legislation.  In R v. Westminster Unions Assessment Committee, ex parte Woodward & Sons [1917] 1 KB 837 the Divisional court had to consider s.65 of the Valuation (Metropolis) Act 1869 which provided that an order or notice under the Act might be served by post and “shall be deemed to have been served and received respectively at the time when the letter containing the same would be delivered in the ordinary course of post”.  At p.838 Viscount Reading CJ said this:
“On a consideration of this statute I have come to the conclusion that once there has been proved the sending by post of a prepaid letter properly addressed containing a notice the assessment committee have proved all that is necessary, and that there is an end of any question of service… 

‘A notice prepaid and addressed as directed by s. 65 if sent through the post “shall be deemed to have been served and received respectively at the time when the letter containing the same would be delivered in the ordinary course of post“. That provision applies to a case where in fact the notice has not been received, otherwise it has no meaning. The intention is to treat as a fact something which has not been established as a fact—even something which can be shown not to be a fact. The section continues: “and in proving such service or sending it shall be sufficient to prove that the letter containing the notice was properly addressed and prepaid and put into the post.” In my view, when those conditions have been performed it must be taken as concluded that the notice has been served and received.’ ”

15.	The phrase “deemed to be made” connotes an imaginary state of affairs which may or may not accord with the reality of what has taken place.  That imaginary state of affairs is also usually conclusive having regard to the purpose of the legislation and the language of the deeming provision itself.  An example of this can be found in the recent decision of the Court of Appeal in Godwin v. Swindon Borough Council [2002] 1 WLR 997 which concerned the correct interpretation of CPR 6.7(1).  The provision in the rule that service of proceedings by first class post was deemed to occur on the second day after posting was held to exclude evidence that the documents had in fact been received the following day. The need for certainty in relation to the service of proceedings requires the fiction to be absolute in its effect.  In his judgment May LJ placed some reliance for his construction of the rule upon the fact that the table of dates for deemed service under CPR 6.7(1) included a date for service by document exchange and other means which might not necessarily bring the proceedings to the notice of the intended recipient. At p1013F he said this:

“the interpretation of r 6.7(1) has to apply not only to service by first class post, but also to the other methods of service in the table. Granted that the purpose of service is to bring the document to the attention of the person to be served, these are all methods of service other than personal service which are not bound to put the document literally into the hands of the person to be served on any particular day. All these methods of service will not achieve this unless the person to be served is there to receive the document or takes steps to do so by, for example, going to the document exchange or checking the e-mail (see CPR PD 6, para 3.3). Uncertainties in the postal system and considerations of this kind make it sensible that there should be a date of service which is certain and not subject to challenge on grounds of uncertain and potentially contentious fact. It seems to me that parties serving documents by these means are in a better position if the deemed date for service is certain than if it is open to challenge on factual grounds.”

16.	There are obvious differences between CPR 6.7(1) and s196(4).  One of these is that CPR specifies a particular date for deemed service whereas s196(4) merely refers to delivery “at the time of which the… letter would in the ordinary course be delivered”.  But the analogy is still a strong and in my view an obvious one. The language of s.196(4) leads me to think that the sub-section cannot have been intended merely to provide for service by recorded delivery at the time at which delivery in accordance with the recorded delivery system was in the particular case in question actually effected.  If Judge Cowell is right and there cannot be delivery “in the ordinary course” absent a signed receipt by Mr. Broomfield then there is no purpose in having a deeming provision at all. The same result could be reached in every case if s196(4) ended at the semi-colon before the words “and that service shall be deemed”.  The addition of those words must in my judgment have been intended to introduce a presumed date of delivery regardless of when the registered letter or recorded delivery in fact took place.  The critical words are not “in the ordinary course” but rather “shall be deemed to be made at the time at which the registered letter would”.  The use of the word “would” rather than “was” is in my judgment indicative of a hypothetical delivery which does not depend on when the postman actually called.  The date of such delivery is governed by what the Court finds to have been the time when delivery in the ordinary course of post would take place but this is to be judged by normal practice and expectations not by the circumstances or whims of the addressee at the time. A combination of fiction and reality would lead to uncertainty as to the hypothesis to be applied and would make the provisions pointless and unworkable.

17.	This view of section 196(4) seems to be supported by the earlier authorities.  In Holwell Securities v. Hughes [1973] 1 WLR 757 Templeman J described the machinery of the subsection in these terms:

“the significance of s 196 is this: it assumes that when a notice is required to be served or given it must actually reach the person for whom it is intended, and there are statutory exceptions which discharge the sender of the notice from proving that it reached the person in question in certain limited circumstances: first of all, if he can show that the notice was left at his house or office, and, secondly, if sent by post in a registered letter properly addressed. In that case if the registered letter is not returned undelivered then it is to be deemed to be sufficiently served, and the Act specifies that the time at which the service is deemed to be carried out is not the time of posting but the time of normal delivery. That seems to me to be consistent only with the underlying assumption that notices which require to be served have got to reach people, and this is a convenient method of proving or deeming that service has in fact been carried out and that they have been reached. True, as counsel for the plaintiffs says, you are not obliged to use the Act. You can hand the notice to the addressee personally or serve it in another form altogether. But in that case, of course, you may not need and do not get the protection afforded by the Act.”
	On appeal Lawton LJ( (1974) 1 WLR 155 at p162B) confirmed that:
“The object of this subsection, as also of sub-s (3), is to specify circumstances in which proof of actual knowledge may be dispensed with.”
In Kinch v. Bullard [1998] 4 AER 650 Neuberger J said this:

“Section 196(4) is a separate and additional provision. It provides, in the first place, that if a notice is served by registered post or recorded delivery, then, even if it can be shown not actually to have been delivered at the relevant premises, the notice will none the less be deemed to have been served at the premises, unless returned undelivered.

Secondly, it provides that (assuming that it is not returned undelivered) a notice sent by registered post or recorded delivery is deemed to have been served at the time when it would, in the ordinary course of post, have been delivered. The use of the word ‘also’ near the beginning of s 196(4) appears to me to emphasise that, far from being intended to be a provision cutting down the generality of s 196(3), it is intended to be an additional provision.”
18.	All these judgments recognise that the statutory fiction may operate to deem service of the relevant notice by registered post or recorded delivery even when the letter never in fact arrives.  This necessarily involves a complete disregard of the actualite.
19.	Judge Cowell reached a different conclusion in reliance upon the decision of Scott J in Stephenson and Son v. Orca Properties Limited.  In that case the issue was whether a notice initiating a rent review which had to be served on the tenant before midnight on Sunday 30th June 1985 was deemed to have been validly served by that date having been sent by recorded delivery on Friday 28th June.  The evidence was that the post office attempted to deliver the notice on Saturday 29th June but found that the offices to which the letter was sent were not yet open.  The letter was therefore returned to the delivery office and a further (and this time successful) attempt at delivery took place on Monday 1st July.  The landlords contended that the letter should be deemed to have been delivered on the Saturday rather than on the Monday when it was actually accepted and received.
20.	Scott J approached the matter by asking himself when a letter sent by recorded delivery on 28th June would in the ordinary course of post be delivered.  His reasoning is set out in the following passage in his judgment:

“Mr Behrens, for the defendant, submitted that 'the time at which the… letter would in the ordinary course be delivered' was Saturday June 29. If there had been someone at the office when the postman had arrived in the morning the letter would have then been delivered against a signature. The time of delivery in the ordinary course of post could not, he submitted, depend on whether or not the premises to which the letter was addressed were, when the postman arrived, occupied or empty.
I agree that this must be so where ordinary post is concerned, but delivery of ordinary post involves no one other than the postal authorities. The post is simply left at the premises. Delivery of a recorded delivery letter is, however, different. Delivery cannot, in the ordinary course of post, be effected unless someone signs a receipt. If no one is available to sign or is willing to sign a receipt, delivery will not be effected. I do not see how 'the time at which the . . . letter would in the ordinary course be delivered' can be held to be a time when the postman would, in accordance with his standing instructions, be bound to withhold delivery. Delivery in the ordinary course of post requires, where recorded delivery letters are concerned, an available recipient; it cannot take place at a time when there is no available recipient.
Mr Behrens has referred me to Kemp v Wanklyn [1894] 1 QB 583. That case involved the meaning of the words 'in the ordinary course of post'. Lord Esher MR made clear that the words meant the general course of post in the district and that any special arrangements made between the post office and addressees were irrelevant. But the arrangements made by the post office regarding recorded delivery letters, which require a signed receipt before delivery can take place, are general arrangements. The requirement of a signed receipt is part of a delivery in the ordinary course of post of a recorded delivery letter.
Nearer home, in my view, is the decision of the Court of Appeal in Hewitt v Leicester Corporation [1969] 1 WLR 855, where a letter was sent by recorded delivery and was returned marked 'Gone away'. Lord Denning MR said at p 858:
Once it appeared that the letter of May 20th, 1965 was returned through the post marked 'gone away', then it was quite plain that it was not served at all. We are not bound to 'deem' a notice to be served at a particular time when we know that in fact it was not served at all.”
In the present case the letter was not in fact delivered on Saturday, June 29. It was not, on that day, brought to the address on the letter, 20 Castlegate, at a time when a receipt could be obtained. It was delivered in the ordinary course of post on Monday July 1. In my judgment, in the circumstances, the deeming provision in section 196(4) does not require Saturday June 29 to be treated as the day of delivery. It follows that, in my judgment, the notice effected by the June 28 letter was out of time.”
21.	It is clear that the basis of this decision was that the court was required to look at what in fact happened in relation to the delivery and receipt of the notice.  This was based in part on the decision of the Court of Appeal in Hewitt v. Leicester Corporation [1969] 1 WLR 855 where the letter sent by recorded delivery was returned through the post marked “gone away”.  The difficulty however about relying upon that decision is that it was not concerned with the provisions of s196(4).  Moreover on the facts there was no room for applying the deeming provision contained in that subsection.  If the letter is returned undelivered s196(4) expressly provides that it is not to be treated as “sufficiently served”.  With respect therefore to Scott J I am not persuaded that the decision in Hewitt v. Leicester Corporation is either helpful or relevant to a case under s.196(4) in which the letter is not returned undelivered.
22.	Both in Stephenson and Son v. Orca Properties and in the present case the issue is not whether the letter was delivered and served but rather when that is to be treated as having taken place.  That question, as I have already indicated, depends on deciding when delivery in the ordinary course of post would have taken place.  Scott J held that that required the presence of an available recipient.  But it does not follow that this factual possibility is limited to the occasion when it actually took place.  It seems to me that the fiction created by the deeming provision extends to what would in the ordinary course be the likely date of delivery. To make the presumption of delivery an effective one s.196 (4) seems to me to require an assumption to be made that an available recipient was present on that occasion. In Stevenson and Son v. Orca Properties Limited the landlord could only succeed by establishing that delivery in the ordinary course of post would have taken place on the Saturday.  Given that the office at the address for delivery was open on that day my own preference would have been to have treated the letter as delivered on that day and to have ignored the fact that the postman happened to arrive too early.  To do otherwise is to confuse fiction with reality and to create the very uncertainty which the statutory provisions were in my judgment intended to avoid.  For the same reason it seems to me that once the statutory presumption comes into play with the operation of the deeming provision then the date on which the recorded delivery receipt was in fact signed becomes irrelevant.  The view of Scott J that it was necessary to provide evidence of an actual signed receipt in order to apply the deeming provision seems to me to ignore the fictitious nature of the exercise and is inconsistent with the earlier judgments in Holwell Securities v. Hughes (supra) neither of which were cited to him.  Furthermore the requirement of a signed receipt is incompatible with the view that the deeming provisions in s196(4) may apply even if in fact there has been no delivery at all.  For these reasons I have come to the conclusion that I should not regard myself as bound by the decision and reasoning of Scott J.
23.	In the present case there are no reasons for not deeming delivery of the counter notice to have taken place on 25th September.  The fact that neither Mr. Broomfield nor his secretary were present in the office when the post arrived is to my mind irrelevant.  The office was or should have been open on that day and delivery in the ordinary course of post should be presumed to have taken place then.  But if the presumption of delivery in the ordinary course of post entitles one to look beyond that date and to consider the events of 30th September then the case is even clearer.  As of that morning Mr. Broomfield knew that a recorded delivery item was ready for collection.  He sent off the P739 card that day and could have requested its delivery as early as 2nd or 3rd October.  Both were days when the office was open and he was available.  The judge was wrong to find that no relevant delivery took place until 10th October.  The application of s196(4) should have led him to conclude that delivery in the ordinary course of post could and should have been presumed to have taken place on either 2nd or 3rd October.  Therefore for the purpose of the rent review provisions in the lease the counter notice must be taken to have been served in time.

(2)	The judge’s findings of fact
24.	My decision on the meaning and effect of s.196 (4)  concludes the appeal in favour of the respondents and does not depend upon the judge’s findings of fact in relation to Mr Broomfield’s choice of 10th October as the date for delivery of the counter-notice.  But out of deference to the able arguments advanced by Mr Loveday in support of the appeal I should briefly state my conclusions on the two principal arguments he has relied upon.
25.	Mr Loveday submits that the judge’s findings that Mr Broomfield in effect deliberately chose 10th October in order to ensure that the counter-notice (if counter notice it was) would be served out of time were against the weight of the evidence and that these allegations were never properly put to him in cross-examination.  He points to the fact that no such case was pleaded against the claimant and that the defence was based on a claim that on 30th September Mr.Broomfield’s staff refused to accept delivery because only he could sign for recorded delivery post.  This version of events was rejected by the judge at the trial.
26.	The point made about the lack of a pleading is a fair one but having considered the transcript I am not persuaded that any injustice occurred.  I am also satisfied that the judge was entitled to make the findings he did on the evidence that was adduced.  In particular it was put to Mr. Broomfield that he must have realised by 30th September that he had not receive the counter notice.  Mr Broomfield denied giving the matter any thought and earlier in his cross-examination insisted that he was unaware of the likely contents of the letter referred to in the P739 card. The judge had to consider whether he accepted this evidence and I can see no grounds for interfering with his assessment of the witness.
(2)	Implied term
27.	That leaves the question of the implied term which I set out in paragraph 11 of this judgement.  Mr Loveday raises a number of objections to the implication of such a term but the two main ones are (1) that the implication of such a term is unnecessary and (2) that such a term has no place in what was a carefully worded document drafted by lawyers.
28.	My decision on the construction of s.196 (4) is of course fatal to the implication of such a term.  There is no need for it.  But even if I had taken the same view of s.196 (4) as the judge did I would still have rejected the defence based on an implied term.  The implication of a term is essentially a process of construction of the contract.  It seems to me that Mr Loveday is right to contend that clause 6 of the lease (incorporating the provisions of s.196) provides an exhaustive code for the service of the rent review notices.  This includes personal service as well as service by registered post or recorded delivery.  Given that the parties have opted for the machinery for service contained in s.196 (3) and (4) there is no room in my judgment for inferring that they also intended to qualify any of the methods of service as set out in these sub-sections.  To do so would require express words and the implied term relied upon by Judge Cowell seems to me to come perilously close to transgressing the rule that no term will be implied which contradicts one of the express terms of the contract.  In Broome v. Pardess Co-operative Society of Orange Growers (Est. 1900) Ltd. [1940] 1 AER 603 MacKinnon LJ said:
“Where the parties have made an express provision as regards some matter with regard to the contract, it is, and must be, extremely difficult for either of them to say in regard to that subject-matter, as to which there is an express provision, that there is also an implied provision or condition in the contract.”

I take this view about the implied term which the learned judge found to exist.

29.	I am also far from convinced that it would be right to attribute to the parties an intention or willingness to incorporate a term which is so vague and is bound to lead to endless disputes as to whether the landlord has acted reasonably.  There is much to be said for Mr Loveday’s argument that far from saying “Of course”, when asked whether it would agree to such a term in the lease, the landlord is far more likely to have given a blanket “no” to that question and to have told the tenant that if in doubt he or she could always arrange to serve the counter notice personally. If the implied term was the only issue for me to consider I would therefore have allowed the appeal.
Conclusion.
30.	For the reasons contained in paragraphs 17-23 of this judgment the appeal will be dismissed. In the absence of agreement I will hear counsel on the form of order and on the question of costs.