The Court of Appeal case of Smith has clarified the circumstances in which the Court can refuse to accept ‘undertakings’ which a Defendant has agreed to provide to the Court as part of a settlement with a Claimant.
This article explores: what an undertaking is and their different types and in what circumstances the court will refuse to accept undertakings provided by a defendant.
An undertaking is a promise to do or not to do a certain act. Where, as in Smith, a Claimant seeks an injunction (an order requiring a party to do or refrain from doing a specific act) as part of its claim, such matters may be settled using undertakings which have the same effect as an injunction. Undertakings are therefore an important tool in the settlement of cases. The settlement in Smith (below) provided that the undertakings in question were provided by the Defendant to the Court. Such undertakings are to be taken very seriously as, if breached, can be enforced by the Court with sanctions for contempt of court ranging from a fine to imprisonment. In contrast, undertakings given by a Defendant to a Claimant (and not to the Court) have contractual effect and, if breached, mean that a Claimant can sue for damages for breach or for an injunction.
In Smith, the Claimant, Dr Erica Smith, sued the Defendant seeking remedies pursuant to the Protection from Harassment Act 1997, the UK GDPR and the Data Protection Act 2018. Her case was that she had suffered a campaign of anonymous online harassment conducted by the Defendant. She also made claims for misuse of private information and breach of her data protection rights.
The Claimant issued her claim on 23 December 2021.
On 29 December 2021, the Claimant made a Part 36 offer to settle her claim. The terms of the Claimant’s offer was the payment of £49,975 in damages from the Defendant and:
within 14 days 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 offer.
The parties then submitted the agreed Undertakings to the Court seeking the Court’s approval of the terms agreed by consent order.
The Judge found that paragraphs 1 to 3 of the Undertakings were too broad, and that the Court would not give effect to them. As such, in the event of breach, the Claimant would be left to pursue contractual remedies in respect of those paragraphs. The Judge was willing to accept paragraphs 4 to 8 of the Undertakings as valid undertakings to the Court, meaning the Claimant could benefit from more severe remedies in the event of breach.
The Court of Appeal reversed the lower court decision finding that “The Judge’s conclusion that paragraphs (1) – (3) are too vague is misplaced“.
The Court further clarified that the circumstances in which it will decline to accept undertakings are limited. The Court will not accept undertakings which are contrary to public policy, illegal or uncertain, and proper weight must be given to the terms of a settlement agreement.
The Court also found that any attempt to curtail a Defendant’s Article 10 rights under the European Convention on Human Rights (Freedom of Expression) via undertakings must be proportionate, but the Undertakings were proportionate in the Smith case.
Parties to disputes should bear in mind the use of undertakings to settle their cases and the difference between undertakings provided to the Court as opposed to the other party. Whilst the Court will not be quick to decline to accept undertakings provided to the Court, parties must ensure that such undertakings are sufficiently certain and are not unlawful or contrary to public policy. Similarly, where a Defendant’s human rights are engaged, and undertakings provided must be proportionate.
 Smith v Backhouse  EWCA Civ 874
 Part 36 is a self-contained procedural code about offers to settle within the Civil Procedural Rules