Dealing with difficult neighbours: claiming they didn’t receive a notice or award etc.
When serving a notice relating to the Party Wall etc. Act 1996, it can be incredibly frustrating when a neighbour states he hasn’t received it, especially if you feel that he is being difficult or obstructive. Wherever possible, giving the neighbour the benefit of doubt is advisable. However, in some cases, this can be detrimental, and some neighbours can just be plain difficult and malicious.
It is important therefore, to understand that the onus is on the neighbour to prove that they didn’t receive a notice, award or other correspondence. Documents can be delivered in person, by post or by email. The burden of proof seems to be higher with post, than in person, in that some people request evidence of postage, yet few people would request a video or other evidence of a person delivering mail by hand.
There is no requirement to provide proof of service. Section 15 of the Act ‘service of notices etc.’ does not place the burden upon the building owner of having to prove service.
If a letter is sent by post, and it is returned as undelivered, then it will be treated as not having been served ‘R v London County Quarter Sessions Appeals Committee ex parte Rossi .
It is open to a party on whom a notice is served to prove that he did not receive the document at all ‘Rossi (supra) and Maltglade Ltd v Crouch Butler Savage Associate (A Firm) and Others . This is reinforced in ‘Calladine v Save-Order Ltd’ where the Judge places the onus on the addressee to prove that he did not receive the post. Specifically, ‘it is not enough simply to assert that someone did not receive the letter’.
Nicholas Isaac QC notes ‘judges are used to hearing litigants claiming not to have received important legal documents through the post, and tend to have a cynical view of such claims. To persuade a court that a document was not received through the post on the deemed date of delivery therefore usually requires a considerably more comprehensive explanation than “I never received it”.’
Bickford-Smith, S., Nicholls, D., and Smith, A., (2017) Party Walls Law and Practice (4th edn), Bristol: LexisNexis
Isaac, N. (2014) The Law and Practice of Party Walls. Moseley: Property Publishing.