Is the Court bound to accept undertakings it would not be willing to enforce, or is that just "bananas"?
In the recent decision of Smith v Backhouse [2022] EWHC 3011 (KB), the English High Court considered whether it is obliged to accept all undertakings which a party has agreed to give in the context of a settlement agreement.
In this case, the Claimant filed a civil claim against the Defendant alleging that he had subjected her to a months long campaign of online harassment across social media platforms, including misuse of personal data, impersonation, and breach of the Claimant’s data protection rights. The parties ultimately agreed to settle the claim by virtue of a settlement agreement in which the Defendant agreed to provide a number of undertakings.
Upon review of the Claimant’s draft order, the Court identified three undertakings that it would not be willing to enforce, namely that the Defendant would not:
- publish any reference or depiction of the Claimant online;
- attempt to impersonate the Claimant; and
- seek to monitor the Claimant’s online activities.
The Court held that the undertakings amounted to a contractual agreement between the parties, capable of redress through contractual remedies in the event of a breach. In considering the proposition of whether the Court must fully accept all undertakings agreed to as part of a settlement agreement or if they can be rejected in part, Nicklin J proposed a purposely absurd example of the Defendant undertaking to the Court that he would never eat bananas again or that he would sing the Marseillaise in Trafalgar Square each Wednesday. He confirmed, “those are not terms which the Court would ever impose or agree to enforce by way of injunction.”
Whilst rejecting the aforementioned undertakings as too broad, the Court accepted the Defendant’s additional undertaking not to engage in any activity amounting to harassment of the Claimant noting that, in effect, the broad undertakings would arguably fall within harassment. Thus, in the event of a breach, the Court would be prepared to enforce a proper claim of harassment by way of punishment for contempt.
This decision underscores the Court’s scrutiny of and discretion retained in approving the content of undertakings provided to the Court, especially in circumstances that may give rise to enforcement. It also highlights the potential for future disputes if the undertakings given are too vague or wide in scope. This case is likely to be persuasive in the Cayman Islands and other offshore jurisdictions.
