Vertigan was the assured shorthold tenant of the claimant. Over the years, it seems that he had done a number of things of which his landlord disapproved, including: (a) sawing through the floorboards to access a cellar, which was not demised to him; (b) damaging padlocks placed by the landlord to exclude him from certain areas; (c) erecting a metal structure outside his flat that he refused to remove; and, (d) allowing his dogs to foul the communal areas.

The landlord issued possession proceedings and the judge granted an outright order. She found that Mr Vertigan had breached various covenants and generally felt that he could do whatever he liked to the flat. She considered whether to make the order an outright order or to suspend it on terms, but decided that the evidence did not allow her to have any confidence that Mr Vertigan would comply with the terms of a suspension.

Mr Vertigan persuaded Peter Smith J to grant him permission to appeal ([2010] EWCA Civ 963 – on casetrack) on the basis that he had seen the error of his ways and was now willing to offer an undertaking to comply with any terms of a suspended order.

The appeal was dismissed. The undertaking, if it was to be offered, should have been offered to the trial judge and not the Court of Appeal. It was not appropriate to consider the offer in those circumstances. The judge had not just been entitled to come to the conclusion that the case justified an outright order, but had plainly been right to so conclude.

The appellant, Mr K, was a tenant of Circle 33. He had given an undertaking to the Court “not to engage, or encourage others to engage, in conduct capable of causing a nuisance or noise” in proceedings brought following complaints about noise from the flat below. There were further complaints of noise and Circle 33 sought committal. The Court below found that although the undertaking was clumsily worded and didn’t say that Mr K wasn’t to allow or permit activities likely to create noise to take place, as a tenant Mr K was responsible for ensuring that did not happen. Mr K was committed to prison for eight weeks.

On appeal, Mr K contended that the Judge has misconstrued the undertaking, there was no clear evidence that he had committed any act of nuisance or encourage others to do so and that in any even the sentence was maifestly excessive.

Held: The words ‘allowing’ or ‘permitting’ did not appear in the undertaking, so the Judge had misdirected himself. There was no finding that Mr K was personally responsible, although the noise had come from his flat. Then, rather puzzlingly, the correct sentence would have been a suspended sentence to ensure future complaiance with the undertaking (this is puzzling because there was, on the previous findings, no breach of the undertaking established. So presumably, this means the correct sentence if there had been a breach).

A reminder, then, that an undertaking to the court is a serious matter and its terms should be clear and precise, so that it is clear when a breach has occurred, or what the undertaker must do to comply.