PI Brief Update

Court’s Approach to Undertakings Given by Parties in the Settlement of a Claim - Anisa Kassamali, Temple Garden Chambers

16/12/22. Smith v Backhouse [2022] EWHC 3011 (KB) considers whether the Court can refuse to accept undertakings which a party has agreed to provide to the Court as part of the settlement of a civil claim. Nicklin J considered that “the consequences could be absurd” [28]if the Court had to accept any undertakings agreed between the parties and refused to accept certain of the undertakings in the parties’ agreement on the basis that they were “too vague/wide” [29].

Background

The claimant Dr Smith (“Dr Smith”) alleged that she had been the subject of a campaign of anonymous online harassment by the defendant Dr Backhouse (“Dr Backhouse”). She also claimed for the misuse of private information and for breach of her data protection rights.

Following various negotiations, Dr Backhouse accepted a Part 36 offer made by Dr Smith. The parties signed a consent order which incorporated undertakings from Dr Backhouse to the Court (see [9]).

Following further correspondence between the parties and the Court, the Court send an email to the parties in the following terms ([13]):

“There is no doubt that the parties to a civil claim can agree whatever terms of settlement they wish. However, when it comes to the Court accepting undertakings from one of the parties, the Judge is concerned to establish what the Court’s jurisdiction is when it is asked to accept undertakings by a party as part of a settlement. Can the Court refuse to accept undertakings on the grounds that the court would not, by injunction, grant such relief, (for example, terms too vague/broad) if so, what principles does the Court apply? Can the Court accept some of the undertakings or, respecting the contractual nature of the settlement, is the Court bound to either...

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