Lost in Translation: undertakings must be worded accurately to avoid confusion

Article

21 July, 2009

It is often the case that in legal proceedings related to anti social or nuisance behaviour, a judge will seek to place the perpetrator on a 'final warning' by requiring them to give an undertaking to the court that they will not behave in such a way again. Normally this kind of obligation is accompanied by the threat of committal proceedings being brought if the tenant continues to behave in an anti social manner, which can in the most serious cases lead to imprisonment.

However, due to the serious nature of these possible outcomes, a court will need to accurately and succinctly state in any order given to the parties what the perpetrator is permitted, or not permitted, to do. If there is any vagueness or ambiguity in the wording used, this can lead to problems later on. The case of Circle 33 Housing Trust v Kathirkmanathan which was heard in the Court of Appeal on 16 July 2009 considered this very issue.

The Facts

The tenant (K) appealed against an order of the court which committed him to prison for eight weeks following a breach of an undertaking not to cause a nuisance or excessive noise.

K and his family were tenants of a first floor flat owned by the housing trust (H). Tenants of the flat immediately below K complained of excessive noise emanating from K's property and H therefore issued proceedings to restrain K from anti social behaviour.

The judge who heard the application accepted an undertaking by K not to engage, or encourage others to engage, in conduct capable of causing a nuisance or noise. However, H continued to receive complaints of continuous noise and nuisance and issued proceedings to commit K to prison for breach. The judge held that whilst the undertaking was clumsily worded and did not specify that K was not to allow or permit activities to take place that were liable to cause noise or nuisance, it was clear that, as a tenant, K was responsible for ensuring this did not occur.

In his appeal, K argued that the judge had misinterpreted the terms of the undertaking given, that there was no clear evidence to show that K had himself committed any act of nuisance, and that the sentence of eight weeks imprisonment was manifestly excessive.

The Court of Appeal's Decision

The Court of Appeal allowed K's appeal. It was held that the language used in the undertaking was not sufficient enough to do what the judge assumed it would do. The wording did not cover allowing or permitting anti social behaviour to take place, as the very words 'allowing' and 'permitting' did not appear anywhere in the terms of the undertaking. Therefore, the judge had misdirected himself in relation to its effect. The court also held that there had been no finding that K had been personally liable for any complaint made. Although the noises had come from his flat, the judge did not find that any specific act of noise was an act done by K as opposed to anyone else.

Finally, the court held that the correct sentence in any event would have been a suspended sentence in order to ensure future compliance with the undertaking.

Summary

This case shows the importance of being clear and precise in the wording used in court documents to prevent confusion and misunderstandings in the future. Just as this decision may be of assistance to members of the judiciary, it may also be helpful for housing practitioners and landlords to be aware of it and ensure that all documents used in legal proceedings are as clear and understandable as possible.

For more information and assistance on these issues, please contact the Housing Litigation Department at Forbes Solicitors on 01772 220200 or contact Stuart Penswick by email.

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