Court Can Refuse To Accept Party's Undertaking Offered As Part Of Settlement

• Jurisdiction: European Union
• Law Firm: Norton Rose Fulbright
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Privacy, Discrimination, Disability & Sexual Harassment, IT and Internet, Data Protection, Arbitration & Dispute Resolution
• Author: Ms Amy Hobbs
• Published date: 28 April 2023

In Smith v Backhouse [2022] EWHC 3011 (KB), the High Court held that it does have jurisdiction to refuse to accept undertakings which a party had agreed to give to the Court as part of a settlement of a civil claim. The Court accepted some of the undertakings from the Defendant but refused to accept certain contractual undertakings as undertakings given to the Court because they were too wide and uncertain.

Background

The Claimant brought a claim against the Defendant in connection with alleged online harassment. The claims were for misuse of private information and breaches of data protection regulation.

The Claimant applied to the High Court for approval of a Consent Order which reflected that the parties had reached an agreement to settle the dispute upon acceptance of a Part 36 offer. The proposed settlement included undertakings designed to prevent the Defendant from continuing to harass, impersonate and/ or monitor the Claimant and endorsed a penal notice outlining the Defendant's potential liability for contempt should the undertakings be breached.

Decision

Upon reviewing the Consent Order and enclosed undertakings, Nicklin J immediately expressed concerns at the "breadth of the undertaking and whether it is one that is appropriately given to the Court".

Nicklin J said that, whilst parties are generally free to settle litigation as they wish, it would be absurd if a court had to accept any undertakings that parties agree. He explained that there could be no objection to the terms of the contractual undertakings between the parties themselves but noted that undertakings given to a court are different because they can be enforced by the court when breached. Accordingly, terms of undertakings have to relate to something a court would be willing to enforce and must be precise; hopelessly vague undertakings might prove incapable of enforcement.

In particular, the High Court did not accept undertakings 1 to 3, by which the Defendant undertook not to: (1) publish by any means any express or implied...