BASILDON BOROUGH COUNCIL v THOMAS ANDERSON & Ors

An undertaking accepted by the court may be released or varied under a discretionary jurisdiction. Although a significant change in circumstances is ordinarily required, it is not an absolute jurisdictional precondition. The court must consider whether the evidence establishes a sufficient change and whether release would be just. A contemnor cannot frustrate a court order by voluntarily leaving the jurisdiction to avoid the consequences of non-compliance. The court may refuse to hear a contemnor remotely where the application is an attempt to avoid attendance and the consequences of contempt. Third-party threats or violence do not, without more, justify variation where the contemnor has failed to take reasonable steps to obtain assistance or devise an alternative means of compliance.

The claimant had obtained injunctions concerning unauthorised development on land at Redlands, Essex. The third defendant had given an undertaking to remove an access track. He failed to comply, and a suspended custodial sentence was imposed. After alleging that men had threatened violence when work began, he left the jurisdiction for Canada and sought remotely to add to his evidence and to vary or discharge the undertaking.

The court considered whether he should be heard remotely and whether the alleged threats and his departure constituted a significant change in circumstances justifying variation under Birch v Birch [2017] UKSC 53.

1. Remote hearing. The application to be heard remotely was refused. The defendant had voluntarily absented himself because he wished to avoid the consequences of his continuing non-compliance. Allowing him to avoid the jurisdiction while seeking to participate remotely would undermine the rule of law and constitute an abuse of process. The court had a discretion whether to hear a contemnor’s evidence, and no obligation to do so: X Ltd v Morgan (Grampian Publishers Ltd) [1991] 1 AC 1, citing Arab Monetary Fund v Hashim (unreported, 21 March 1997).
2. Variation of undertaking. Under Birch v Birch [2017] UKSC 53, the court could not vary an undertaking already accepted, but could release the parties from it, unconditionally or on different terms. The court had to consider whether there had been a significant change in circumstances, whether the evidence showed that the undertaking could not be complied with, and whether release would be just.
3. A significant change in circumstances was not an absolute precondition to jurisdiction. In practice, however, grounds for release were difficult to foresee without such a change. The alleged threats did not establish a sufficient change. The defendant knew of the serious and coordinated breaches affecting the land when he gave the undertaking. He had also represented at the earlier hearing that he remained willing to comply and had failed to pursue available assistance from the police, the local authority or others.
4. Release would not be just. The court order could not be subordinated to the actions of third parties who threatened violence. The defendant had chosen to flee the jurisdiction rather than take reasonable steps to fulfil his obligation. The application to vary or discharge the undertaking was therefore refused.

The judgment was a first-instance decision on an application under CPR 81.10. The court refused the third defendant’s application to vary or discharge the undertaking and indicated that the application to commit would require separate determination.