Smith v Backhouse

Factual and Procedural Background

This appeal concerns the court's discretion to refuse undertakings agreed by a defendant as part of accepting a Part 36 offer made by the claimant. The underlying claim involves alleged harassment under the Protection from Harassment Act 1997, misuse of private information, and breaches of data protection laws including the UK GDPR and the Data Protection Act 2018.

The Appellant ("Plaintiff") made a Part 36 offer to the Defendant, which the Defendant accepted, including several undertakings to the court. The trial judge refused to accept some of these undertakings, specifically paragraphs (1), (2), and (3), while accepting others. The Plaintiff appealed this refusal.

Both parties were legally represented when the Part 36 offer and undertakings were agreed. The Defendant later accepted the offer fully, leading to a draft Consent Order with penal notices and signed undertakings. Concerns were raised by the judge regarding the breadth and enforceability of certain undertakings, leading to the contested order and this appeal.

The dispute centers on whether the court should accept the full scope of the undertakings given their breadth, clarity, and enforceability, especially in the context of balancing freedom of expression rights and protection from harassment.

Legal Issues Presented

1. Whether the court erred in law by refusing to accept proper and enforceable undertakings agreed between legally represented parties in a Part 36 settlement where those undertakings were not illegal, immoral, or equivocal and there were no exceptional circumstances.
2. Whether the undertakings in paragraphs (1), (2), and (3) were too broad to be accepted by the court.
3. Whether the undertakings in paragraphs (1), (2), and (3) were too vague to be accepted.
4. Whether the court should have accepted the undertakings subject to provisos narrowing their terms rather than rejecting them entirely.

Arguments of the Parties

Appellant's Arguments

• The judge was wrong to refuse undertakings that were legally agreed and enforceable, as there were no exceptional circumstances such as illegality or immorality to justify refusal.
• The undertakings were clear, precise, and necessary to address the harassment suffered by the Plaintiff, and similar undertakings have been accepted in analogous cases.
• The judge's criticisms regarding the breadth and vagueness of paragraphs (1) to (3) were unfounded and based on insubstantial grounds.
• The judge failed to apply the proportionality test required when considering restrictions on freedom of expression.
• Even if the court could not rewrite the undertakings, it should have invited the parties to consider narrowing them rather than rejecting them outright.

Respondent's Arguments (Presented by Attorney)

• Undertakings must be certain, clear, and have a relevant nexus to the conduct complained of to be accepted.
• The court should not accept undertakings that are too broad or vague, as this leads to difficulties in enforcement and potential misuse of court resources.
• There is no obligation for the court to accept undertakings that it would not itself have granted by way of injunction.
• The judge was entitled to reject paragraphs (1), (2), and (3) on grounds of excessive breadth and vagueness.
• Public policy and proportionality considerations justify the court's refusal to accept overly broad undertakings.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged that undertakings given to the court must be clear, precise, and enforceable, as breach may lead to contempt sanctions. While the parties had contractually agreed the undertakings, the court must not uncritically accept undertakings that are overly broad or vague, as this risks future contentious enforcement proceedings and misuse of court resources.

The judge below had rejected paragraphs (1), (2), and (3) of the undertaking on grounds of excessive breadth and vagueness, fearing they might prohibit trivial or lawful conduct and cause enforcement difficulties. However, the appellate court found that breadth alone is not a valid reason to refuse undertakings if they provide effective protection to the claimant's rights and are proportionate.

The court applied established principles from key authorities emphasizing the importance of upholding freely entered settlement agreements, particularly where both parties were legally represented and no exceptional circumstances exist. It further noted the requirement to balance restrictions on freedom of expression under Article 10 of the European Convention on Human Rights with the need to protect from harassment.

The appellate court concluded that the lower judge failed to give proper weight to the settlement agreement and did not apply the proportionality test correctly. The criticisms of paragraphs (1) to (3) were found to be insubstantial and not supported by the evidence or legal standards. The court recognized that similar undertakings have been accepted in comparable harassment cases.

However, the court identified one specific concern: paragraph (1) could disproportionately restrict the Defendant's freedom of expression in academic contexts by preventing citation of the Plaintiff's scientific work. To address this, the court proposed a narrowly tailored proviso to exclude such academic citation from the prohibition, thus balancing protection and freedom of expression.

The court confirmed that while it cannot rewrite undertakings, it may suggest clarifications or provisos to parties for consideration, though the lower judge was not obliged to do so.

Holding and Implications

The court ALLOWED THE APPEAL with the following effect:

• Paragraphs (1), (2), and (3) of the undertaking are to be accepted as part of the settlement agreement, subject to a declaration excluding academic citation from the scope of paragraph (1).
• Paragraphs (4) to (8) remain accepted as previously ordered.
• The Defendant's undertakings are enforceable by the court, enhancing the claimant’s protection beyond contractual remedies alone.
• The court emphasized the importance of upholding freely negotiated settlement agreements to encourage finality in litigation and public interest in efficient administration of justice.

No new precedent was established beyond reaffirming and applying existing principles regarding the acceptance of undertakings and balancing freedom of expression with protection from harassment.