Smith v Backhouse

The Court of Appeal allowed the appellant's challenge to part of Nicklin J's order refusing to accept certain undertakings given by the respondent as part of the claimant's Part 36 offer. The court reaffirmed that where undertakings form part of a settlement reached with legal advice the court must give them appropriate weight (Mionis), subject to the usual limits: illegality, public policy, uncertainty and proportionality where Article 10 is engaged. The judge erred by focusing primarily on breadth and the risk of future disputes rather than applying the Mionis approach and the Article 10 proportionality test. Paragraphs (1)–(3) of the proposed undertaking were proportionate and sufficiently clear, but paragraph (1) was modified by a limited proviso to allow the respondent to cite scientific works of the claimant. The Court therefore ordered that the contractual undertakings be accepted by the court subject to that declaration.

This was an appeal against a decision of Nicklin J ([2022] EWHC 3011 (KB)) refusing to accept paragraphs (1), (2) and (3) of an undertaking which the defendant had agreed to give to the court on accepting the claimant's Part 36 offer. The claim arose under the Protection from Harassment Act 1997 and for misuse of private information and alleged data protection wrongs under the GDPR/UK GDPR and the Data Protection Act 2018. The pleaded facts concerned a campaign of online impersonation, dissemination of manipulated images, threats and misuse of personal details.

Nature of the relief sought: the claimant sought, by way of settlement accepted under Part 36, payment of damages and a signed undertaking by the defendant not to publish references to the claimant, impersonate her, monitor her activities, contact her or her associates, approach her within 50 metres, engage in harassment or encourage third parties to do likewise. The defendant accepted the Part 36 offer and agreed to give the undertaking to the court.

Issues framed: (i) whether the court may decline to accept undertakings that form part of a settlement freely agreed by legally represented parties; (ii) whether paragraphs (1)–(3) were too broad or too vague to be accepted and enforced by the court; and (iii) whether the judge should have narrowed the undertakings rather than refusing them.

Court’s reasoning: the Court of Appeal set out the governing principles: undertakings are serious, must be sufficiently precise to be enforceable, and courts must give weight to settlement agreements (notably Mionis) but must also ensure terms are not illegal, contrary to public policy or uncertain and, where Article 10 rights are affected, that the restriction is proportionate. The judge had over-emphasised the risk that wide terms might generate future disputes and had not given proper weight to the settlement bargain or applied the Article 10 proportionality assessment. On analysis paragraphs (1)–(3) were sufficiently clear and proportionate in light of the wrongs complained of; paragraph (1) required a narrow proviso so as not to prevent legitimate academic citation. The appeal was allowed and the court declared that citation of the claimant's scientific works by the respondent in his own scientific publications would not breach paragraph (1). The remainder of the undertakings were accepted by the court.

Appeal allowed. The judge erred in law by not giving due weight to the settlement agreement and by treating breadth alone as a reason to refuse to accept undertakings agreed between legally represented parties. Undertakings given as part of the Part 36 settlement (paragraphs (1)–(8)) should have been accepted; paragraphs (1)–(3) were proportionate and sufficiently clear, subject to a declaration that it will not be a breach of paragraph (1) for the respondent to cite the claimant's scientific articles or books in the respondent's own scientific publications. The judge could have invited parties to agree narrowing provisos but was not obliged to do so; nonetheless a single limited proviso was made to protect freedom of expression in the academic context.

Appeal from the High Court of Justice, King’s Bench Division, Media and Communications List (Nicklin J) [2022] EWHC 3011 (KB). The appeal was heard in the Court of Appeal and allowed on 21 July 2023 ([2023] EWCA Civ 874).