Court Of Appeal Provides Guidance As To When Court May Refuse To Accept Party's Undertakings As Part Of Settlement

• Published date: 07 August 2023
• Subject Matter: Employment and HR, Contract of Employment
• Law Firm: Herbert Smith Freehills
• Author: Ms Louisa Cranfield

The Court of Appeal has unanimously allowed an appeal against a judge's decision refusing to accept certain undertakings agreed between the parties to a settlement agreement: Smith v Backhouse [2023] EWCA Civ 874.

It confirmed that a court may decline to accept undertakings, even if they form part of a settlement agreement, but the circumstances in which it should do so are limited. It rejected the High Court's conclusion that the undertakings in this case were too broad or vague to be enforced by way of committal proceedings, and held that they should have been accepted.

The decision emphasises that there are powerful public policy reasons why the courts should uphold an agreement in which the parties have agreed to settle their dispute. In deciding whether undertakings should be accepted or enforced, the court must give proper weight to the settlement agreement itself and the public interest in encouraging parties to settle their disputes in the confidence that the terms of their settlement will be upheld.

Background

The claimant and the defendant are research scientists working in a similar field. As explained in our blog post on the first instance decision (here), the claimant brought claims against the defendant for harassment, misuse of private information and breach of her data protection rights. 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...