30/08/2009

Kathirkmanathan revisited

Circle 33 Housing Trust Limited v Kathirkmanathan [2009] EWCA Civ 921

We first reported on this case in July 2009, on the basis of a lawtel note, which was all that was available at the time. In this quiet time for new judgments, there are a few such cases for which full transcripts are now available, so we can fill in some details (and give the proper citation).

This was an appeal of a committal for breach of undertaking. The undertaking was following complaints of noise nuisance from Mr K’s downstairs neighbours. Mr K was Circle 33’s assured tenant and lived in the first floor flat with his wife, an adult cousin who is in or close to his twenties, and two children, 2 and 3 years old at the relevant time. The specific undertaking given to the County Court in September 2008 was as follows:

…not to, whether by himself or by instructing or encouraging any other person:-

1. Engage or threaten to engage in conduct capable of causing a nuisance or annoyance to [2 named ladies] to include (but not limited to) playing ball games and riding bicycles or scooters in 63 Peel Close.

2. create excessive noise, such that a reasonable person would consider it anti-social, inside 63 Peel Close between the hours of 9 pm to 7 am to include (but not limited to) running, jumping, talking loudly, slamming doors, dropping objects on the floor, playing ball games and riding bicycles in 63 Peel Close.

There were further incidents of noise -‘constant running jumping and banging’ – and Circle 33 brought committal proceedings.

At the County Court, HHJ Mitchell found breaches of the undertaking and committed Mr K for 3 concurrent terms of 8 weeks. An appeal was immediately made and Mr K was released that evening. This was the expedited appeal hearing.

The appeal was on three grounds. The judge had misconstrued the terms of the undertaking; there was no evidence that Mr K was responsible for the nuisance; and that in any event the sentence was excessive.

On the first ground, the Circuit Judge had found on the terms of the undertaking as follows:

Now that is somewhat clumsily worded but in my judgment it makes it perfectly clear that, as the tenant for these premises, the Defendant is responsible for ensuring that he does not cause noise to his neighbours. Ms Rubens for the Defendant argued that to some extent if he is not — they have got to prove he is encouraging any person. Quite simply it should have said: ‘by himself, his servants or agents must not encourage or permit’ and that it seems to me would have covered it. It is rather clumsy wording but in my judgment it is still clearly aimed at not allowing or encouraging anti-social behaviour to take place and emanate from his flat. Ms Rubens submits there is nothing about failing to control his children. In my judgment the general wording is sufficient to cover the situation which we have here.

At the Court of Appeal, Ward LJ disagreed. The undertaking did not contain the words that would cover the situation:

The language, therefore, is not sufficient to do that which the judge assumed it would do: namely, to make the defendant responsible for ensuring that he does not cause noise to his neighbours. The language does not, as the judge thought, cover allowing antisocial behaviour to take place and emanate from his flat. “Allowing” does not appear in the undertaking, “permitting” does not appear in the undertaking, and the judge has therefore misdirected himself as to the effect of the undertaking and an appeal against his order should be allowed accordingly.

On this point Jacob LJ agreed strongly:

I agree. It cannot be emphasised enough that breach of an undertaking or of an injunction is a serious matter, possibly leading to imprisonment. One cannot go by some woolly spirit of intendment of the language of the undertaking or injunction by the precise language used. The judge did not do that here. Liberty of the subject is involved. The language should be read much as one would read a criminal statute, and it is not enough to say one does not like what went on. Those responsible for drafting injunctions or undertakings should take considerable care as to exactly what is involved, because if they do not then the document may either be meaningless and unenforceable or very simply restrict something which is inappropriate.

Appeal allowed on that basis. On the issue of lack of evidence against Mr K personally, the Court agreed. There was no evidence sufficient to identify the originator of the nuisance and some of the nuisance complained of was unlikely to have had Mr K as its source.

On the excessive sentence issue, if there had been a breach of undertaking, Ward LJ notes that there was evidence before the CJ that the behaviour had reduced and there were no recent complaints. Mr K had apologised and it was a first commital. In view of that and as:

The primary objects of a committal are of course in part to punish for the contempt, but also to use the sanction coercively so as to prevent a recurrence. In those circumstances it seems to me that the right sentence in any event would have been a suspended sentence, and I venture to think that in the first instance four weeks would have been ample to force future compliance with this undertaking.

The appeal suceeded on all grounds, but with the wording of the undertaking being key. Jacob LJ’s words are a clear reminder that for undertakings, where liberty is at stake, going by ‘what must have been intended’ by the undertaking is simply not enough.

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.

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