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

Case No B2/2009/1306[2009] EWCA Civ 921
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON CIVIL JUSTICE CENTRE
(HIS HONOUR JUDGE DAVID MITCHELL)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 16 th July 2009
Before
LORD JUSTICE WARDLORD JUSTICE JACOB
Between
CIRCLE 33 HOUSING TRUST LTDRespondent/KATHIRKMANATHANAppellant/
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Ms J Rubens (instructed by Blavo & Co Solicitors) appeared for Appellant.Mr B Mullee (instructed by Circle 33 Housing Trust Ltd) appeared for Respondent.
Judgment
[1]The respondent to this appeal, Circle 33 Housing Trust Limited, are, we have been told, a large housing association managing 97,000 properties. As good landlords they appear to have a policy of endeavouring so far as they can to ensure that life on their estate is peaceably conducted so that all who enjoy the benefit of their premises can live quietly and peaceably together.[2]A couple of ladies occupied number 61 Peel Close in Chingford, which is a ground floor flat, and living above them is the appellant, his wife, an adult cousin who is in or close to his twenties, and two children. The children were born on 6 January 2007 and 21 May 2005, so at the material time with which we are concerned they were about two years old and three and a half years old respectively. The ladies downstairs complained of excessive noise disturbing their peace, all emanating from the flat above, and so the respondent took proceedings to restrain that antisocial behaviour and the matter came before the district judge in the Edmonton County Court.[3]On 17 September 2008 he, the district judge, accepted the appellant’s undertaking which was in these terms:
“…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.”
And that is the undertaking.[4]Notwithstanding that undertaking, complaint was made of continuing noise and so proceedings were taken to commit the appellant to prison for breach of his undertaking, and the application set out in a schedule which is before us a series of breaches from 29 October 2008 until 24 January 2009. I think without exception the breaches were couched in these terms -- that on a certain day, and the days are almost consecutive days:
“…you and/or members of your household could be heard causing nuisance and annoyance to [the two ladies] by constant running, banging and jumping…”
Those were the main features of the complaint.[5]And so that application for committal came before the circuit judge, HHJ Mitchell, who heard two days of evidence from a large number of witnesses and on 10 June found the appellant to be in breach of his undertaking.[6]On 16 June of this year the judge sentenced him to a term of eight weeks’ imprisonment for each of the breaches, but each to be concurrent with the other. There was an immediate application to this court to appeal against that committal, and Stanley-Burnton LJ granted a stay of execution of the committal and ordered a speedy hearing of the appeal. The result is, as I understand it, that the appellant was released from prison later that night, some time after 9pm, on the day that he had been committed and this is the hearing of that appeal.[7]Miss Rubens on his behalf takes three points. The first is that the judge misconstrued the terms of the undertaking, the second is that there was no clear evidence to show that the appellant had by himself committed any act of nuisance, nor did the judge find that he had, and thirdly that in any event the sentence was manifestly excessive.[8]Dealing therefore with the first issue before us, the proper construction of the undertaking,

the judge said this in paragraph 9 of his judgment:

“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.”
And to paraphrase the rest of his judgment, the situation he did have there was, as he correctly identified it, a theme in the case is that the children were not properly disciplined and they were running wildly out of control.[9]Mr Mullee acknowledges that the undertaking is not happily worded. When pressed by the court about it he has to accept that, contrary to the judge’s interpretation, the undertaking does not cover allowing or permitting activity to take place, the express terms are “instructing or encouraging any other person” to do the prohibited act. And so it seems to me that the judge, in recognising the hallowed language of -- he said encouraging or permitting, I would say causing or permitting -- instead of that we have the clumsy wording of “instructing or encouraging” some other person to do some other act.[10]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.[11]In any event, it seems to me the second point advanced by the appellant is made good insofar as the injunction restrained him by himself from engaging or threatening to engage in conduct capable of causing a nuisance or annoyance, or restrained him by himself from creating excessive noise of whatever kind it may be, and quite clearly much of it is directed to the activity of these boisterous children. There was no finding by the judge that he personally had been responsible for any such act at all. The noise indeed emanated from his flat, but the judge did not find and I think perfectly properly could not find that a specific act of stamping was an act of stamping by this appellant, that any shouting that may have come from upstairs was his shouting as opposed to some other male person’s shouting (and I remind myself that there was this 20 year old male in the house), still less was there any evidence that he himself was running, jumping, talking loudly, slamming doors, dropping objects, playing ball games, riding bicycles and scooters and so forth in the premises. The judge did not find a specific breach by him personally, and I venture to think the evidence was never strong enough to do so, as Mr Mullee acknowledges in his submissions. That is why, properly drawn, the undertaking should have bound him to prevent others behaving in that way in his flat.[12]As for the third point, this was on the judge’s finding of the general noise that came from the flat a serious case, but there was also evidence that he had, as he indeed found, that the behaviour had come to an end. As he said in paragraph 54 of his judgment:
“…Ms Richards [a witness] says that after the 7th May [which was the first time the case came before the court, though it was then adjourned] there was a 50% improvement and I was being told, through Mr [Mullee] that, in fact, they were saying that it has been quiet since the hearing of the substantive evidence.”
[13]So there was some evidence before the judge that a curb could be placed upon the exuberance of the children running riot, as he found. Moreover, there was evidence that, although he had denied these events, he did apologise. It was the first time the case was brought by way of committal. 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.[14]For all those reasons I would allow this appeal and discharge the committal order.[15]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.[16]That is what happened here. There was no breach of the undertaking and I agree with everything else that my Lord has said.

Order

Appeal allowed

Cited in 1 later judgment