Circle 33 Housing Trust Ltd v Kathirkmanathan

An undertaking or injunction enforceable by committal must be construed from its precise language. The court cannot enlarge it by reference to a general intention to control conduct on premises. Wording that prohibits a person from acting personally, and from instructing or encouraging another, does not make that person liable simply because prohibited noise or conduct comes from the premises or household members. Breach requires conduct within the words of the undertaking. A committal sentence has punitive and coercive purposes. Where conduct has ceased or materially improved, and it is a first committal, a suspended sentence may be appropriate.

After neighbours complained about excessive noise from a flat, Circle 33 Housing Trust Ltd obtained an undertaking from the tenant, Kathirkmanathan. The undertaking prohibited him, whether personally or by instructing or encouraging another person, from specified nuisance and excessive noise.

Following further complaints, His Honour Judge David Mitchell found the tenant in breach and imposed concurrent eight-week terms of imprisonment. The tenant appealed, challenging the construction of the undertaking, the absence of proof that he personally committed the acts, and the sentence. The central issue was whether the undertaking made him responsible for conduct by household members when it did not expressly prohibit allowing or permitting such conduct.

1. Disposition. The appeal was allowed and the committal order was discharged.
2. Construction. Lord Justice Ward held that an undertaking whose breach may lead to imprisonment must be read according to its precise language, rather than by reference to a broad or woolly intention. The words requiring the tenant to refrain from conduct personally or from instructing or encouraging another person did not include allowing or permitting antisocial behaviour. The judge therefore misdirected himself by treating the undertaking as making the tenant responsible for ensuring that no noise emanated from the flat. Lord Justice Jacob agreed, emphasising the importance of precision where personal liberty is at stake.
3. Proof of breach. The undertaking restrained the tenant personally from engaging in the prohibited conduct. Noise emanating from the flat was insufficient. There was no finding, and no adequate evidence, that the tenant himself had run, jumped, shouted, slammed doors, dropped objects, played ball games or ridden bicycles or scooters. The wording did not establish a breach caused by other household members. If that responsibility was intended, the undertaking should have expressly required him to prevent such conduct.
4. Sentence. In the alternative, Lord Justice Ward considered that the sentence was excessive. Committal serves punitive and coercive purposes. The evidence that the behaviour had ended or materially improved, the first committal, and the tenant’s apology made a suspended sentence appropriate; four weeks would have been sufficient to encourage compliance.

• Court of Appeal (Civil Division): Allowed the tenant’s appeal and discharged the committal order.
• Central London Civil Justice Centre: His Honour Judge David Mitchell found the tenant in breach of the undertaking and imposed concurrent eight-week terms of imprisonment.
• Edmonton County Court: On 17 September 2008, the district judge accepted the tenant’s undertaking.