Mistaken on Undertaking

nuisanceAs a reminder, in case one were needed, that undertakings to the Court in ASB cases should be considered very carefully indeed comes Circle 33 Housing Trust Limited v Kathirkmanathan (2009) CA (Civ Div) 16/7/2009 [Not on Bailii yet, available as note on lawtel].

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.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in ASB, Housing law - All and tagged , .

10 Comments

  1. If it can be said that breach of an undertaking is analagous with contempt of court, then this is a very rare instance of a court asserting its authority over a defendant (it is commonplace for judges to do so to police officers – and solicitor advocates).

    But it does seem excessive and unecessary to send someone to prison – an ultimately useless punishment for those other than the ‘dangerous to society’ sort. But no punishment at all for those Norman Stanley Fletchers who see prison as an occupational hazard.

    I very much hope the judge wasn’t acting the tough guy by sending [… removed by NL] for a bit of re-training at a cushy country retreat because he didn’t have the heart to levy the more appropriate sanction of possession and eviction.

    I’m guessing that our perp is on benefits – he had solicitors at his beckon call as few working men could – and the thought of the state keeping his bed warm while he enjoyed his sojourn must be as infuriating for his long-suffering neighbours as the noise nuisance itself.

    Anyone know if he moved back to the same place upon release?

    • Breach of an undertaking is contempt of court. CCR Order 29.

      I don’t think the landlord brought any possession claims, and certainly there was no claim before the judge. This was purely a committal application by the landlord. There was therefore no way that the judge could order possession or eviction.

      I don’t know if he spent any time in prison, in view of the appeal. But if he had, the tenancy would still have been his.

    • At a committal hearing a judge is unable to make an order for possession, all he can do if he finds the defendant to be in contempt of court is to send the defendant to prison, impose a fine or take his assets as security.

      I think you are also misinformed if you think judges rarely take action at committal hearings, especially where anti-social behaviour is concerned.

      Injunctions are often sought in anti-social behaviour cases as an initial step towards controlling anti-social behaviour (indeed all the guidance says eviction should be a last resort and other avenues should be explored first).

      The rational is that it is better to try and solve the problem of anti-social behaviour while the LA or HA still has a modicum of control over the tenant. Evicting someone without trying to solve the problem of anti-social behaviour often just has the effect of passing the problem onto someone else.

      Finally, I’d also be careful about using phrases such as “[… edited by NL]” when there is no evidence of the defendant in this case ever having been to prison. That is defamatory and following the recent decision of Eady J bloggers now lack anonymnity: see http://technology.timesonline.co.uk/tol/news/tech_and_web/the_web/article6509677.ece .

    • And commenters have been liable for defamation for a very long time. I’d hate to receive an order compelling me to hand over Michael’s IP address etc.. In fact, I’ll edit the comment to spare him and me such trauma (and remove the words from your comment too – sorry).

  2. You caution is understandable NL, but it would be very difficult to bring a defamation claim based on the wording I used. But it would be your head on the block so who am I to speak!

    As to the guidance recommending eviction as a last resort I’m lost for words. But a lot less surprised that the sort of behaviour complained of is so prevalent.

    The guidance really couldn’t be more wrong.

    If Mr K was a first time offender, then I’m not comfortable about criminalising someone for playing records too loud. Neither, I bet, are his neighbours. The appropriate action is to say:-

    “Sorry Mr K, but you can’t live here any more. But no problem, you’ve got a clean record and we wish you all the best in finding a landlord and neighbours who can accommodate your lifesyle.”

    It’s not putting the problem on anyone else, apart from Mr K who will have to learn to mend his ways – or get rich quick.

    • Michael – I disagree on potential liability on your wording, and it wouldn’t have been my head on the block, or at least only to the extent of handing over your IP address ;-)

  3. Perhaps Michael might be assisted by reading the Tenancy Management Circular on Eligibility and Evictions issued by the Housing Corporation .

    This appears to be a proper decision by the CA if someone is to be committed to prison for breach of an order you must be sure he has committed the conduct the order prohibits – as the order was drafted in the way it was once there is no finding of fact that he either engaged or encouraged then the application should have been dismissed.

  4. Hehe NL, let ’em come – I’ll take my chances. [deleted by NL]

    Cripes (was gonna use the name of a prophet, but my free-speech-ometer said eee-aaah!) I’m on his side after all!

    JS, you’re way out of my brain-league. I don’t understand what you’re saying.

    But all I’m saying no more than don’t criminalise those who breach the terms of a tenancy agreement, just withdraw the great privilege of having the tenancy in the first place.

    If they don’t see it as a privilege, ok. If they don’t like the responsibilities the tenancy requires. Fine. Ciao bello.

  5. I represented Mr K at the Edmonton County Court as a duty solicitor before a Circuit Judge, (Committal). Circle 33 were with their Counsel.

    He told me his two children, I think they are 3 & 5 year running around with their cycle in the flat. They are living in the first floor.

    Complainant is living at the ground floor flat. Whether he breached/disobeyed the Court order (consented), technically his children were. The question should be, do they aware of the consequences of breaching the Court order.

    Instead of send these children to social services, their father was sent to prison (bit harsh).

    Circle 33 should have moved either Mr K or the complainant to another property, prefer this litigation.

    At the end, Mr K is legally aided, and Circle 33 is a social landlord. I think its a waste of taxpayers money on both side.

    • Thanks Sean, useful to have some background – and a counterbalance to the knee jerk assumptions of some.

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