Notice of Assignment via email - Is that allowed?

[MasterCoder]

I've got an impending court case coming up on the 11th July and in preparation I've been reading a lot on LegalBeagles about Notices of Assignment and the requirements for notices to be considered served as required by the Law and Property Act 1925 s.196(4) which says:

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 [F1by the postal operator (within the meaning of [F2Part 3 of the Postal Services Act 2011]) concerned] 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

From what I've read, the general consensus is that the most important element of the requirement is that notices are sent via the postal service and the requirement to send by some kind of recorded/signed for delivery is not; the notice just needs to be sent in the post and not returned to be sufficient for a DJ looking at a claim and are usually happy to accept one has been served.

The claimant's solicitor in my case however has submitted, as part of their witness statement, that the Notice of Assignment was sent via email. On the face of it, this would seem to be an admission that service of the notice of assignment was deficient because it failed to meet the requirements of the LPA 1925 s.196(4) meaning that any assignment was equitable only and the original creditor would need to be a named party in the claim. The email they claim to have sent it to hasn't been in use for years.

Obviously, I'm not a solicitor so I'm hoping someone with a more thorough understanding of the law might be able to shine some light on this for me.

Thanks

MC

[R0b]

To properly answer the question you need to begin with s.136 of the LPA 2915, which says:

Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor ...

As highlighted above, a legal assignment requires there to be notice in writing. If you haven't already, you may wish to research the Interpretation Act 1978 and the definition of 'writing'. For the purposes of whether email was notice in writing, the answer to that is properly yes.

Your reference to s.196 of the LPA refers to what is considered deemed service. S.196(3) says that if the notice is validly served on the debtor if it was left at the last known abode or business premises whereas s.196(4) as you refer to also says that notice is deemed served if sent by registered post (but registered post no longer exists so recorded delivery or better).

So strictly speaking, notice does not need to be sent by post as it can be left at the last known address, but for your purposes of whether email is considered deemed service, there is some case law that might be of assistance to you.

E.ON UK plc v Gilesports Ltd [2012] EWHC 2172 (Ch) was a case relating to an assignment of a lease which required consent. Without going into too much detail as I'll let you read up on the case, the arrangement incorporated the requirements of S.196 of the LPA in respect of service of the consent. The issue was whether an email giving consent satisfied the requirements of s.196 of the LPA and the judge decided that it did not.

I suggest you read paragraphs 51-54 of the judgment in particular but specifically at para.54 the judge says:

Counsel for E.ON submitted that section 196(3) required physical delivery of the application to Central Networks’ last known place of business, and that the email dated 2 May 2008 was neither physically delivered nor sent to Central Networks. Counsel for Gilesports submitted that section 196(3) merely stipulated that such service was “sufficient”, not that it was required, and that there was good service because the application was in fact received by Central Networks’ agent. I do not accept that submission. In my judgment section 196 requires service by one of two methods: either delivery to (in the case of a landlord) the landlord’s last known place of abode or business or by registered post. In the present case neither method was used. Accordingly the application was not “served” on Central Networks.

Note my emphasis above - the judge said that for the purposes of complying with s.196, you can only satisfy this with two methods: delivery to the last know address or by registered post. In effect, s.196 dispenses with the need to provide proof and/or actual knowledge of the notice provided you can comply with it.

As to the point of the assignment being sent to an old email address, you could argue that the email address has not been used for a number of years and that they did not take steps to ascertain whether that email was still being used. Nonetheless, you might find the case of Holwell Securities Ltd v Hughes helpful as to the point of being notified of the assignment. Have a look at the point made below by LJ Lawton

In my judgment, the phrase “notice in writing” is of importance in this context. Conveyancers are familiar with it and frequently use it. It occurs in many sections of the Law of Property Act 1925 ; for examples, see sections 36 (2), 136, 146 and 196 . In the option clause under consideration the draftsman used the phrase in connection with the exercise of the option but in other parts of the agreement he was content to use such phrases as “agreed in writing” (see clause 4) and “if required in writing” (see clause 8 (a)). Should any inference be drawn from the use of the word “notice"? In my judgment, yes. Its derivation is from the Latin word for knowing. A notice is a means of making something known. The Shorter Oxford English Dictionary gives as the primary meanings of the word: “Intimation, information, intelligence, warning, … Formal intimation or warning of something.” If a notice is to be of any value it must be an intimation to someone. A notice which cannot impinge on anyone's mind is not functioning as such.

Now in this case, the “notice in writing” was to be one “to the intending vendor.” It was to be an intimation to him that the grantee had exercised the option: he was the one who was to be fixed with the information contained in the writing. He never was, because the letter carrying the information went astray. The plaintiffs were unable to do what the agreement said they were to do, namely, fix the defendant with knowledge that they had decided to buy his property. If this construction of the option clause is correct, there is no room for the application of any rule of law relating to the acceptance of offers by posting letters since the option agreement stipulated what had to be done to exercise the option. On this ground alone I would dismiss the appeal.

Also it related to the purchase of an option which notice had to be given within a certain timeframe, the appeal failed because the notice was sent by normal post but the notice was never received. Applying the same analogy to your case, the notice was sent to an email that was never used for a number of years, you had no notice of the assignment which is a step required for any legal assignment to be valid - therefore, the notice was defective and this simply becomes an equitable assignment meaning that the claimant has no right to bring a claim in their own name.

I've attached the two cases to my post so you can have a read an familiarise yourself. That might be enough to win the case but it really depends on how nice the judge is and how well you can get those points across.

[MasterCoder]

Thank you Rob. that's a very thorough and informative explanation of the law in this regard. I appreciate your time and effort to explain it to me

So the general gist of it is that postal service isn't necessary but rather service at an address in person or via recorded delivery. Although you point out that emails can be seen as 'writing' you could argue the LPA requirements to service at an address or via registered/recorded mail requires a physical notice; something in paper form.

To be honest, this is going to be a fall back for me when I do go into court; my primary defence is the lack of a default notice. FWIW, they claim a default notice was served via email but it appears that too is not allowed.

Hopefully I'll get a judge with who's in a decent mood by the time I get around to him but I think I have some solid arguments that should be water tight from a legal perspective. As you say, it's just being able to get that across to them.

Thanks again.

[R0b]

In a nutshell, yes you are right that it has to be physcially in person or by recorded delivery or better. That's not to say notice can't be done by email, but it would have to be shown that the email was actively used in order to be put on notice of the assignment, otherwise you could argue that there was no notice because you never received it - simply sending the email is not sufficient, one has to be put on notice and aware of it.

[MasterCoder]

Well I can prove the email wasn't in use.

The domain in question that they've attempted to use to contact me expired in December 2017. The WS they provide states they emailed that address on the 4th January. Any attempts to send en email to an address with no corresponding mailbox, let alone an address with a non-existent domain name, would bounce back to the sender with a delivery failure report. In other words, they would have to know that the email wasn't valid and therefore notice not served.

I've just re-read their WS and discovered another absolutely fantastic boob they've made regarding the contract. These people are meant to be solicitors?

[R0b]

Well if you can prove that the email domain had expired in December 2017 then that should be a slam dunk for failing to give notice of assignment. These types of solicitors do it cheap with a high churn of claims so they don't really pay too much detail to the attention as it eats into their profit costs - doesn't give them a good reputation but hey ho.