In possession proceedings in the County Court between the landlords and tenant, the tenant was ordered to give the landlords possession of the property and to pay rent arrears and occupation rent until possession was given. The tenant applied for a stay of execution of the warrant of possession obtained by the landlords. At the hearing of the application, the tenant gave an undertaking to the court that he would pay a sum of money, being equal to the rent arrears, to the landlords. In consequence, the application for a stay was adjourned. At the adjourned hearing, the tenant having informed the judge that the money had been paid and upon the tenant giving a further undertaking to the court that he would pay a sum of money, being occupation rent, to the landlords, the judge held that there had been a change of circumstances and accordingly granted the tenant a stay of execution and suspended the warrant. The sums of money having not in fact been paid by or on behalf of the tenant in accordance with his undertakings and remaining unpaid, the landlords applied to haver the tenant committed to prison for contempt of court. The judge found the contempt proved and imposed a sentence of imprisonment of 12 months. The tenant appealed on the ground, inter alia, that the court had no power to impose a sanction of imprisonment for a contempt of court consisting of a breach of an undertaking to pay a sum of money by virtue of section 4 of the Debtors Act 1869 unless one of the exceptions applied and none did in the present case.
On the appeal—
Held, appeal dismissed. It was clear from previous authorities that section 4 of the Debtors Act 1869 had to be purposively construed, and that since its purpose was to prevent imprisonment for non-payment of ordinary debts, it did not apply to orders or undertakings requiring the provision of security, whether by way of payment into court or an appropriate bank account. Assuming that section 4 applied to an undertaking to pay money to a party which was otherwise precisely equivalent to an order to pay money to that party, it was nevertheless necessary not only to construe the undertaking, but also to take into account the context in which, and the purpose for which, it had been given. In the present case, the undertakings had been given by the tenant as the price to obtain court orders in his favour and adverse to the landlords. Although the non-compliance manifested itself in a failure to pay money to the landlords, in the circumstances that was not merely a failure to pay an ordinary debt. On the contrary, it was a failure to honour extra obligations to the court which the tenant assumed, over and above the ordinary debts he owed, for the purpose of obtaining advantages in the proceedings. In such circumstances it was vital that the court should be able properly to enforce undertakings given to it. Accordingly, section 4 of the 1869 Act did not prevent the tenant from being imprisoned for breach of his undertakings (paras 45–46, 58, 59).
Adam Tear, solicitor (of Scott-Moncrieff and Associates Ltd) for the tenant.
Ian Rees Phillips (instructed by YVA Solicitors llp) for the landlords.