Lord Bingham identified certainty, clarity and predictability as key constituents of the Rule of Law. His portrait gazes down in the Supreme Court. Certainty, clarity and predictability are not so warmly espoused by the current President, Baroness Hale.
The recent case of Newcastle Upon Tyne NHS Foundation Trust v Sandi Haywood decided that notice of termination of her employment was not given when the letter of dismissal was delivered to her address, but only when it had actually been received by her and she either read or had reasonable opportunity of reading it. The five judges in the Supreme Court and the Court of Appeal, who were of the opinion that Sandi Haywood should get her pension, were Lady Hale, Lady Black, Lady Justice Arden, Mrs Justice Proudman and Lord Wilson.
The powerful dissenting voices were Lord Justice Lewison in the Court of Appeal and in the Supreme Court, Lord Briggs, with whom Lord Lloyd-Jones agreed.
Lewison LJ relied on, amongst other authorities, Lord Abbott CJ in Walter v Haynes (1824) "Where a letter, fully and particularly directed to a person at his usual place of residence, is proved to have been put into the Post Office, this is equivalent to proof of a delivery into the hands of that person; because it is a safe and reasonable presumption that is reaches its destination. If a letter is sent by the post, it is prima facie proof, until the contrary be proved that, the party to whom it is addressed received it in due course."
Scott J in Stephenson v Orca accepted a submission that "the time of delivery in the ordinary course of post could not depend on whether or not the premises to which the letter was addressed were, when the postman arrived, occupied or empty".
Lord Denning in Stidolph v American School in London Educational Trust Limited said, "In any case, I do not think that a tenant can avoid the effects of a notice like this, which is properly sent by registered post to him, by saying that he did not take it out of the envelope or read it. Obviously, he would not get out of it by saying that he destroyed the envelope without opening it. Nor does he do so by saying that he did not read it." In Stidolph, Edmund Davies LJ put the point more generally; "Based upon considerations mainly of business efficacy, there is a long-standing presumption in our law that a letter, duly addressed, prepaid and posted, which is not returned to the sender has in fact been received by the addressee—unless he can establish the contrary. The usefulness of a presumption of this kind would be destroyed if the addressee could nevertheless be heard to say: "Although I received the postal packet quite safely, I did not read the contents," or "I did not examine the postal packet to see that I had extracted all that it contained.""
In the Supreme Court, Lord Briggs said, "the task of this court is not to fashion, for the first time, a new implied term to fit a new situation, with a free rein to choose between available alternatives on modern policy grounds. Rather it is to examine the common law authorities to find out what the implied term already is. Contracts on notice have been around for hundreds of years. "However, despite the persuasive common law authorities, the Supreme Court jettisoned by a majority an implied term which had been, according to Lord Briggs, around for over two centuries namely," that written notice of termination is given when the document containing it is duly delivered, by hand or by post, to the home (or, if appropriate, business) address of the intended recipient, rather than, if later, when it actually comes to the recipient's attention, or when the recipient, absent at the time of delivery, has returned home and has had a reasonable opportunity to read it. That term is clearly identified by the common law authorities as the correct one."
So much for certainty, clarity and the Rule of Law.
Originally published 31 May 2018
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