Dr Erica Smith v Dr Christopher Backhouse

A court may accept contractual undertakings as undertakings to the court, but it is not bound to accept every undertaking agreed in settlement. It may accept some and reject others without rewriting the underlying contract. The court should scrutinise undertakings because they may be enforced through contempt proceedings. Terms must be sufficiently clear and certain to identify the prohibited conduct. Wide or vague terms which may capture lawful, trivial or insubstantial conduct should generally be refused. An undertaking not to engage in harassment may nevertheless be accepted where the alleged breach can be clearly identified and proved to the criminal standard. Contractual remedies remain available for undertakings which the court declines to accept.

The claimant brought proceedings alleging a campaign of anonymous online harassment, misuse of private information and breaches of data protection rights. The parties reached settlement through acceptance of a Part 36 offer, including damages and eight proposed undertakings to the court.

The court questioned whether it had to accept all the agreed undertakings, whether it could reject terms that would not ordinarily be granted by injunction, and whether it could accept only part of the proposed undertakings.

1. Jurisdiction and contractual settlement. The parties’ agreement was a binding contractual settlement, and the court could not rewrite its terms. Nevertheless, accepting an undertaking to the court adds the court’s coercive enforcement powers to the contractual agreement. The court therefore had jurisdiction to accept some undertakings and refuse others.
2. Clarity and certainty. Undertakings to the court have the potential to be enforced by committal. They should identify clearly what conduct is prohibited. Ambiguous terms are construed in favour of the defendant in any contempt proceedings, and hopelessly vague terms may be unenforceable. The court should not uncritically accept undertakings which are unjustifiably wide or likely to generate disputes about trivial or lawful conduct.
3. Application to the proposed terms. Undertakings (1), (2) and (3), respectively concerning publication or depiction of the claimant, impersonation and monitoring, were too broad or vague. They were not accepted as undertakings to the court. The claimant retained contractual remedies in respect of those terms.
4. Harassment undertaking. Although an injunction in the terms of undertaking (7) would not ordinarily have been granted, the court accepted it because it had been agreed and reflected conduct prohibited by section 1 of the Protection from Harassment Act 1997. Any alleged breach would have to be identified clearly and proved beyond reasonable doubt.
5. Undertakings (4), (5), (6), (7) and (8) were accepted and incorporated in the order. Breach could expose the defendant to contempt proceedings and the associated penalties.