After the tenant caused flooding of flats underneath her flat. As a result the landlord had obtained an order for possession of it but it had undertaken to the court to offer the tenant specified alternative accommodation at basement or ground floor level before seeking to enforce the order. When, following further flooding in breach of a reciprocal undertaking which the tenant had given to the court, the landlord applied for release from its undertaking, a recorder held that the court lacked jurisdiction to grant release from it.
Held: The recorder did have jurisdiction to grant release and that the court should itself exercise it.
Butler-Sloss LJ held that the principle applied to all civil litigation and at 613 that the fact that the undertaking was recorded as a prelude to a consent order was irrelevant.
‘I am in no doubt, therefore, that an undertaking wherever recorded which is accepted by the court can be discharged by the court at any stage if it is just to do so.’
Judge LJ stated that the principle was not confined to matrimonial proceedings.
Thorpe LJ held that the principle applied in the fields both of family law and of civil law.
Judges:
Butler-Sloss, Judge, Thorpe LJJ
Citations:
(1997) 30 HLR 608
Jurisdiction:
England and Wales
Citing:
Applied – Russell v Russell CA 1956
The husband appealed against a judge’s refusal to release him from an undertaking that, unless he was out of work, he would not apply for a downwards variation of an order for maintenance in favour of the wife.
Held: The husband had ‘wholly . .
Cited by:
Cited – Mid Suffolk District Council v Clarke CA 15-Feb-2006
The council had taken proceedings against a farmer whose production of swill, for feeding to pigs, was emitting a smell which local residents found scarcely tolerable. Rather than suffer the making of an injunction against him, the farmer had . .
Cited – Birch v Birch SC 26-Jul-2017
The parties, on divorcing had a greed, under court order that W should obtain the release of H from his covenants under the mortgage of the family home. She had been unable to do so, and sought that order to be varied to allow postponement of her . .
Lists of cited by and citing cases may be incomplete.
Housing, Litigation Practice
Updated: 02 September 2022; Ref: scu.643868