Dr Erica Smith v Dr Christopher Backhouse

When deciding whether to accept undertakings forming part of a settlement, the court must give proper weight to the agreement and to the public interest in the finality of litigation. An undertaking must be clear, enforceable and consistent with public policy.

Breadth alone does not justify refusal. A restriction extending to lawful conduct may be accepted where necessary to protect the claimant effectively. Where freedom of expression is engaged, proportionality must be assessed. A strong case is required to displace a freely negotiated settlement on that ground. The court may address a disproportionate aspect by declaring the undertaking's proper application.

The claimant brought claims arising from an alleged campaign of online and personal harassment, impersonation and misuse of private information and personal data. The defendant accepted her Part 36 offer, paid damages and agreed, with legal advice, to give eight undertakings to the court.

Nicklin J, in [2022] EWHC 3011 (KB), accepted five undertakings but refused three prohibiting publication about, impersonation of, and monitoring of the claimant. He considered them too wide or vague. The claimant appealed.

The central issue was when a court may refuse agreed undertakings forming part of a settlement, particularly where they restrict expression and extend beyond conduct that is independently unlawful.

1. Appeal allowed, subject to a caveat. The judge erred by failing to give proper weight to the settlement and by failing to conduct the proportionality analysis required where freedom of expression was engaged. The public interest favours the finality and enforcement of settlements freely made with legal advice. A strong case is required before an agreed restriction affecting Article 10 rights is displaced on proportionality grounds.

2. An undertaking must use clear and unambiguous language. The person giving it must know what is prohibited, and the court must be able to enforce it through contempt proceedings. The court may refuse undertakings that are illegal, immoral, uncertain, contrary to public policy, frivolous, or liable to bring enforcement into disrepute.

3. Breadth is not, by itself, a reason to refuse an agreed undertaking. The relevant question is whether the restriction is necessary to afford effective protection to the claimant's rights. A restriction may extend to conduct which is not itself tortious or otherwise unlawful.

4. The prohibitions on referring to the claimant, impersonating her and monitoring her were sufficiently clear and appropriately tailored to the alleged wrongdoing. “Monitoring” extended beyond a single internet search. The possibility of a trivial breach did not make the undertakings unenforceable because the court could respond proportionately to any contempt application.

5. The prohibition on referring to the claimant was, however, disproportionate and contrary to public policy insofar as it prevented scientific citation of her work. The court declared that citing a scientific article or book authored or co-authored by the claimant in a scientific work authored or co-authored by the defendant would not breach the undertaking.

6. A judge cannot rewrite agreed undertakings. The judge may identify concerns and allow the parties to reconsider their terms, but has no duty to do so.

Asplin LJ gave the judgment. Arnold and Warby LJJ agreed.

1. Court of Appeal (Civil Division): In [2023] EWCA Civ 874, allowed the claimant's appeal subject to a declaration permitting scientific citation of her work.

2. High Court, King's Bench Division: In [2022] EWHC 3011 (KB), Nicklin J refused to accept three agreed undertakings as too vague or wide, but accepted the remaining five.