Court can refuse to accept a party's undertakings as part of settlement

The High Court has held that the court can refuse to accept undertakings which a party has agreed to give to it as part of the settlement of a civil claim: Smith v Backhouse [2022] EWHC 3011 (KB).

The court noted that, where an undertaking is given to the court, a breach of the undertaking may be punished by proceedings for contempt of court. Accordingly, the court is not bound to accept undertakings which are vague, or unjustifiably wide, such that it would not be appropriate to enforce them by way of a contempt application. The court will not, however, interfere with the agreement reached between the parties, and therefore undertakings purportedly given to the court may nonetheless be enforceable as a matter of contract.

The decision provides a useful reminder to those agreeing terms of settlement that any undertakings which they wish the court to police must be sufficiently clear and certain, and not unjustifiably broad.

Background

The claimant brought claims for harassment, misuse of private information and breach of her data protection rights against the defendant. She alleged that the defendant carried out a campaign of harassment against her during the course of several months, which included the creation of fake social media accounts impersonating the claimant, anonymous death threats, and misusing the claimant's contact details to sign her up to various unwanted services and groups, including far-right hate groups and fetish websites.

The claimant made a Part 36 offer to settle the claim in return for the payment of £49,975 in damages and the provision of a signed undertaking to the court from the defendant that he would not:

"(1) Publish by any means, including but not limited to on the worldwide web, social media, telephone or any form of text, email, instant electronic messaging service, any express or implied reference to or any pictorial depiction of the Claimant, save

(a) for the purposes of seeking legal advice or in the context of legal proceedings, and

(b) for complying with any legitimate obligations under his contract of employment.

(2) Attempt to impersonate the Claimant.

(3) Seek to monitor the Claimant's activities, including but not limited to her activities on the worldwide web, social media or the activities of her friends or family.

(4) Attempt to contact the Claimant by any medium or any platform, including but not limited to telephone or any form of text, email, instant electronic messaging service, in person or otherwise either directly or indirectly save through lawyers or where he is required to do so under a contract of employment for legitimate purposes.

(5) Attempt to contact by any medium or any platform individuals who he knows or suspects are friends, family, acquaintances and/or colleagues of the Claimant save where he is legitimately required to do so under a contract of employment.

(6) Knowingly approach within 50 metres of the Claimant save where he is legitimately required to do so under a contract of employment.

(7) Otherwise engage in any activity that amounts to harassment of the Claimant or any other activity that is likely to cause her distress.

(8) Will not (sic) encourage or permit any third parties to engage in any of the above acts on his behalf"

The defendant ultimately accepted the claimant's Part 36 offer including the provision of the undertakings. He acknowledged that proceedings for contempt of court could be brought against him should he breach any of the undertakings.

The court convened a hearing of the parties as the judge was "concerned at the breadth of the undertaking and whether it is one that is appropriately given to the Court."

Decision

Mr Justice Nicklin, the judge in charge of the Media and Communications List in the High Court, considered whether a court is bound to accept any undertakings the parties wish to give it. He noted that a court must be willing to enforce the undertakings, if necessary, by way of punishment under a contempt application.

In order to test this proposition, Nicklin J gave the example of parties settling a claim on terms that the defendant would undertake to the court that he would never eat bananas again and would, each Wednesday, sing the Marseillaise in Trafalgar Square. He observed that the court would never agree to enforce such terms by way of injunction. Parties would be free to agree them, as a matter of contract law, but it must be open to the court to refuse to accept them.

Nicklin J noted that undertakings, particularly those given to the court, must be drafted precisely so that it is clear exactly what conduct is prohibited. If the court, on a contempt application, considers that the wording of the undertaking is unclear or unambiguous then it may prove incapable of enforcement. He emphasised that widely drafted undertakings increase the likelihood of future disputes between the parties about whether there has been a breach. The court has limited resources, and therefore it is appropriate to limit the instances where it is prepared to enforce future compliance to those cases where the undertakings comply with the requirements of clarity and certainty.

Nicklin J concluded that, in this case, the restrictions imposed by the undertakings at paragraphs (1), (2), and (3) above were too broad for the court to accept. The court would not rewrite the undertakings, as they represented a contractual agreement reached between the parties, but in respect of any alleged breach by the defendant in future, the claimant would only have contractual remedies available to her. He confirmed that the court was able to accept the remaining undertakings, as they would potentially be enforceable by way of an order for committal.

Note: This decision has been overturned on appeal: [2023] EWCA Civ 874.