Leeds and Yorkshire Housing Association v Vertigan, Court of Appeal, December 9, 2010 (Elias LJ, Norris J, Lawtel note only)
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 ( 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.