Paul Newbold & Ors v Coal Authority (2013)
The Lands Tribunal had been entitled to conclude that damage notices given under the Coal Mining Subsidence Act 1991 s.3 were valid.
The appellant authority appealed against a decision ( UKUT 20 (LC),  R.V.R. 157) that valid damage notices had been given by the respondents (N) under the Coal Mining Subsidence Act 1991 s.3.
N sought compensation under s.2 of the Act for the cost of remedial works to a property of which they jointly owned the freehold. The first claimant (N1) had served the damage notices, which had been completed by a professional agent (X). N1's name was given as the claimant, as owner of the freehold. The authority rejected the notices on the ground that they had not been given by all the owners of the property, and failed to include the particulars required by the Coal Mining Subsidence (Notices and Claims) Regulations 1991 Sch.1, which included the names of the claimants. N accepted that a notice had to be given by or on behalf of all co-owners but claimed that the notices had been validly given by N1 as an implied agent for himself and his brothers as undisclosed principals. N also claimed that there had been substantial compliance with the Regulations. The Lands Tribunal held that N1 did not have authority to act on his brothers' behalf and that there was no scope for undisclosed agency under the statutory provisions. However, the tribunal found that, as a matter of construction, it would be apparent to a reasonable recipient of the notices that they purported to be given by the owners, not just by one of them. With regard to alleged defects in the notices, the tribunal concluded that the requirements of the Regulations had been sufficiently complied with.
The authority contended that the tribunal had erred in (1) upholding N's submission that any reasonable person in the authority's position would have known that the insertion of N1's name only on the notices was an error and what was really intended, as that had not been pleaded or addressed in evidence; (2) finding that the notices had been given by all three brothers as owners of the property; (3) concluding that none of the defects in the notices invalidated them.
(1) If the authority could demonstrate that N's failure to include the late submission in their case had affected the evidence in any appreciable way, it would not have been open to the tribunal to find for N. That would be so even though the authority had not sought a specific ruling on the admissibility of that submission. However, the authority had not identified any evidence it would have called if the submission had been advanced by N in their statement of case. That was unsurprising as the tribunal had dealt with the submission as a question as to the true interpretation of the damage notices. There was no contentious background relevant to their interpretation, and the subsequent conduct of the parties was irrelevant to their interpretation, Whitworth Street Estates (Manchester) Ltd v James Miller & Partners Ltd  A.C. 583 applied. The true interpretation and effect of a document such as the damage notices was a question of law and open to review by the Court of Appeal (see paras 51-55 of judgment). (2) It was necessary to be cautious when considering the form for a damage notice. It was not a statutory form, but had to be considered in the light of the statutory provisions. The Act laid down two requirements relevant to the issue of who gave the notice. First, a notice was given by a person identified under s.3(6) as the claimant; second, the claimant had to own the property or be a person liable to make good the damage. Addressing those requirements in the instant circumstances, it was the three brothers, the freehold owners, giving notice, with N1 being named really as a matter of convenience. The brothers had authorised X to deal with their subsidence claims and, in dealing with and despatching the notices, X had been acting on their behalf. The tribunal's construction of the notices would be upheld. N's concession that a notice served by one of several co-owners was invalid should not be taken to accept that a notice given by one joint owner for the purpose of satisfying s.3 was necessarily ineffective. Whether it was depended on the true construction of the statute (paras 61-68). (3) With regard to the effect of failure to comply strictly with statutory or contractual requirements, the requirement in question had to be construed. The wording of s.3 suggested that a notice would be valid provided that it adequately provided the information required by the Regulations. It was not possible to conclude that Parliament intended a notice to be invalidated by an inaccuracy in the particulars. The damage notices in the instant case provided adequate information to the authority. The authority identified the property in question and the damage it had suffered. It identified N as the owners of the freehold and therefore competent to give a notice under s.3. That conclusion was confirmed by the fact that the authority had responded to the notices and had been able to investigate the claims (paras 69-72).
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23 May 2013
Court of Appeal
Longmore LJ, McFarlane LJ, Sir Stanley Burnton
LTL 23/5/2013 :  EWCA Civ 584