McCann & Anor v Bennett

Undertakings given to the court must be obeyed while they remain in force. A party who considers an undertaking inappropriate must apply to vary or discharge it; that application does not ordinarily justify delaying a committal application concerning an alleged breach. Discharging or varying an undertaking does not itself establish that the previously restrained publication is lawful. The court must separately address any contractual or procedural obstacle to reopening the settlement and, if necessary, whether the claimant has a cause of action justifying renewed restraint. Where proceedings have been stayed pursuant to a settlement, an application to vary the undertaking should be treated procedurally as an application to lift the stay, followed, if appropriate, by consideration of variation pending trial or other disposal.

The claimants had brought a stayed libel action concerning publications alleging that they were responsible for the death of their daughter and had concealed the circumstances. As part of the settlement, the defendant gave undertakings to destroy specified publications, prevent access to specified online allegations and refrain from repeating them.

The claimants later applied to commit the defendant for contempt, relying on a schedule of alleged breaches. The defendant applied to vary the undertakings so that he could publish allegations which he said were true or honest comment. He also sought to have the variation application heard first, or together with the committal application. The issues were the appropriate procedural treatment and whether the committal hearing should be delayed.

1. The committal application was to be listed as soon as practicable. The court held that committal proceedings should be heard promptly. The defendant’s possible future eligibility for legal aid, at an unknown date, did not justify a further adjournment after earlier adjournments had been granted to protect his position regarding representation.
2. Undertakings to the court, like injunctions, must be obeyed while they remain in force. A party cannot disregard an undertaking and then seek an adjournment of committal proceedings pending an application to vary it. Permitting that course would undermine the effectiveness of injunctions and undertakings as remedies.
3. Discharge or variation of an undertaking would not itself authorise publication of the restrained allegations. At least two further questions would remain: whether the defendant could overcome the principle that a settlement should not be reopened except on established contractual grounds, and whether the claimants had a cause of action in libel or harassment warranting renewed injunctive relief.
4. The defendant’s application was therefore to be treated as an application to lift the stay imposed by the order of 25 November 2009 and, if the stay were lifted, as an application to vary the undertakings pending trial or other disposal. The application could be considered after the committal hearing, including when deciding whether any penalty should be determined immediately or adjourned.

The parties were invited to agree an order reflecting those directions.

This was a first-instance decision on the management of a committal application and an application to vary undertakings given in stayed proceedings. No lower-court decision or appeal is stated.