Court of Appeal overturns decision of High Court judge to refuse to accept undertakings in harassment claim
We previously published a press release on behalf of our client Dr Erica Smith following the outcome of her harassment and privacy claim against former colleague and UCL academic Dr Christopher Backhouse. The claim concerned a sustained campaign of online harassment, which included the creation of Twitter accounts impersonating Dr Smith and offering sexual services to the public.
Shortly before it came to trial, the claim settled with Dr Backhouse paying Dr Smith £49,975 in damages and over £70,000 in costs. A unilateral statement was read a statement in the High Court reporting on the settlement (Dr Backhouse declined an invitation to take make a joint statement, to accept liability or to apologise). As part of the settlement, a legally-represented Dr Backhouse agreed to provided signed undertakings to the Court promising that he would not engage in specified behaviour in the future or otherwise harass Dr Smith.
Undertakings to the court
An undertaking to the court is more serious than a contractual undertaking. It has the same effect as an injunction: breaching it can amount to a contempt of court, and if sufficiently serious, lead to a fine or even prison sentence. A recent example of successful committal proceedings based on breaches of undertakings to the court is Dew v Mills-Nanyn  EWHC 1925 (QB) (see our blog ‘Tinder stalker sentenced for contempt of court’).
It is common for claims where an injunction is sought, such as harassment claims, to be settled on the basis that the defendant provides undertakings to the court. The threat of committal to prison can be an effective deterrent against future harassment (or other forms of wrongdoing).
The refusal to accept three of the undertakings to the court
What was not reported at the time of Dr Smith’s press release was that the High Court had raised preliminary concerns about some of the undertakings. After terms of settlement had been agreed, Mr Justice Nicklin, the Judge in Charge of the Media and Communications List, communicated to the parties his concerns over the form of the undertakings, and unilaterally listed the matter for a hearing.
At the hearing, Nicklin J gave an ex tempore judgment (Smith v Backhouse  EWHC 3011 (KB)) rejecting three of the eight undertakings offered by Dr Backhouse. These were undertakings that Dr Backhouse would not:
- Publish by any means, including but not limited to on the worldwide web, social media, telephone or any form of text, email, instant electronic messaging service, any express or implied reference to or any pictorial depiction of the Claimant, save
a. for the purposes of seeking legal advice or in the context of legal proceedings, and
b. for complying with any legitimate obligations under his contract of employment.
- Attempt to impersonate the Claimant.
- Seek to monitor the Claimant’s activities, including but not limited to her activities on the worldwide web, social media or the activities of her friends or family.
Nicklin J’s reasoning was that these undertakings were too broad/vague and would be liable to lead to dispute over breach. They would, he held, prevent Dr Backhouse from apologising for his conduct, mimicking Dr Smith in the pub, or ‘googling’ her name. Nicklin J went on to explain that the Court must be at pains to avoid accepting undertakings that were unenforceable or imprecise. He gave examples of unenforceable and unacceptable undertakings including an undertaking to sing La Marseillaise in Trafalgar Square every Wednesday or never again to eat bananas.
Nicklin J noted that the three rejected undertakings had still been given to Dr Smith, so should they be breached, she could sue Dr Backhouse for breach of contract. This meant that a breach could give rise to a claim for damages (and/or Dr Smith would be apply to convert the contractual undertakings to injunctions, albeit it followed that such an application would fail). However, committal proceedings would not be possible. Thus, they did not carry the same deterrent effect as the permitted undertakings.
Whilst Nicklin J did not believe that an appeal had a real prospect of success, he nevertheless granted permission to appeal on the basis that there was a dearth of authority on the issue.
Concerned about the limited breadth of protection under the permitted undertakings, Dr Smith appealed. In particular, it was argued on behalf of Dr Smith that the terms of the undertakings were not imprecise at all, were not vague, went to the very core of the harassing conduct complained of (i.e. online impersonation and stalking), and that Nicklin J had fallen into error in his legal analysis of the type of undertaking that should be rejected by the Court. It was particularly aggrieving to Dr Smith that one of the reasons given for rejecting undertaking 1 was that it would prevent an apology. As above, Dr Backhouse had previously been invited to apologise and to join with Dr Smith in making the statement in the High Court. He had declined to do so. Moreover, the undertaking would not have prevented an apology via lawyers.
The appeal was heard by Lady Justice Asplin, Lord Justice Warby, and Lord Justice Arnold on 11 July 2023. Dr Backhouse did not seek to resist the appeal (he had not sought to resile from his agreement to provide all eight undertakings to the Court), and was not represented. Recognising the wider importance of the issue, the Court of Appeal invited the Attorney-General to appoint an Advocate to the Court to ensure that the legal issues were properly argued.
In her reasoned judgment, Asplin LJ explained that there was no doubt (as the Appellant accepted) that the court may decline to accept undertakings, even where they are agreed between the parties as part of a settlement. However, the circumstances in which the court may reject such undertakings are limited, and therefore the question was whether Nicklin J’s identification of the limited circumstances was wrong in law.
Asplin LJ explained that when undertakings to the court are offered in lieu of an injunction, the court will be cautious about accepting terms that it would not itself have granted by way of injunction – though there is no firm rule preventing it doing so. Given the close relationship in law between undertakings to the Court and injunctions, many previous cases considering the granting of injunctions were relevant to the question of acceptability of undertakings to the court. Asplin LJ noted four key points relevant to the issue of when a court would not accept undertakings (or grant an injunction). They were:-
- That they are a discretionary remedy and would be granted only if it is just to do so, and the court should be slow to make orders which it would not be willing to enforce;
- That the circumstances in which a court should reject undertakings (or refuse an injunction) are not ‘closed’ (i.e. there is no set list), and the facts of each case will affect the court’s decision;
- That as a matter of general principle, an injunction (and therefore an undertaking to the court) must be expressed in unambiguous language so that the defendant knows exactly what is forbidden or required by the order; and
- That as these are very serious matters that can lead to a fine or imprisonment, they should be recorded in writing in full and clear terms. Although there may be room for argument as to interpretation, the circumstances in which such arguments can be raised should be kept to a minimum.
Asplin LJ addressed the issue of undertakings that are frivolous or of a nature that the enforcement of them would bring the court into disrepute. She was clear that such undertakings should be rejected, (including such examples that Nicklin J gave about bananas and La Marseillaise).
Asplin LJ found that Nicklin J had appeared to base his decision to decline to accept the undertakings on their breadth and vagueness, which he considered would make it more likely that there would be future disputes. She explained “breadth in itself is no reason to decline to accept an undertaking”. On vagueness, Asplin LJ said Nicklin J’s “conclusion that paragraphs (1) – (3) are too vague is misplaced” and that there “was an error of law” in his approach. She noted, "[Nicklin J] himself commented, albeit in a different context, that the terms of the contractual settlement could not be clearer."
The Court of Appeal carefully considered the question of proportionality. Proportionality is important in cases such as this, where Dr Backhouse’s rights under Article 10 of the European Convention on Human Rights, which protects freedom of expression, were obviously compromised by the undertakings. Such encroachments on freedom of expression must be justifiable and proportionate. In this respect, Asplin LJ also held that Nicklin J “erred in law in his approach”, including, importantly, that he “failed to apply the test of proportionality” derived from the Court of Appeal case of Mionis v Democratic Press SA  EWCA Civ 1194. The Court of Appeal had little hesitation in deciding that the three undertakings represented justifiable and proportionate restrictions on the facts of the case – not least given Dr Backhouse’s agreement to give the undertaking as part of the settlement.
The Court of Appeal unanimously allowed the appeal and, subject to a declaration permitting Dr Backhouse to cite Dr Smith’s academic works in any academic work of his own, accepted the undertakings. The full judgement (Smith v Backhouse  EWCA Civ 874) can be found here.
This is a welcome and important decision for all practitioners and parties involved in harassment claims. Undertakings to the court play an important role in resolving distressing and costly disputes. It is in everyone’s interests, including the court’s, for the parties to be able to settle on terms that limit the possibility of further litigation. From a claimant’s perspective, they want to ensure all harassment will cease: in harassment claims, the mindset of the defendant often means that they will test the boundaries of what is permissible. This means that best practice is for an undertaking to expressly list prohibited forms of anticipated mischief, whilst including a backstop prohibition on any other form of harassment.
As the Court of Appeal noted at paragraph 58 of its judgment, that the conduct prohibited by undertakings 1, 2, and 3 might also be caught by a general undertaking not to harass is “of no assistance”. Whilst a general prohibition on harassment is a useful fallback provision, it gives the claimant and defendant less certainty over what is permitted and, as Asplin LJ specifically points out, it requires the claimant to “prove more in order to establish a breach”. It would require the claimant to have to, in effect, establish that the conduct complained of in breach of the undertaking is capable of sustaining a standalone harassment claim (and on the higher criminal burden of proof). If first instance judges were to routinely query or disallow undertakings freely agreed between the parties, this and the respective cost, would risk deterring the parties from exploring settlement. No party wants to enter into a bargain that might be held to be void.
Articles are intended as an introduction to the topic and do not constitute legal advice.