Dr. Erica Smith v Dr. Christopher Backhouse
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicklin |
| Judgment Date | 08 November 2022 |
| Neutral Citation | [2022] EWHC 3011 (KB) |
| Docket Number | Case No: QB-2021-004686 |
| Court | King's Bench Division |
[2022] EWHC 3011 (KB)
THE HONOURABLE Mr. Justice Nicklin
Case No: QB-2021-004686
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand
London
WC2A 2LL
Ben Hamer (instructed by Brett Wilson LLP) for the Claimant
Barry Coulter (instructed by Lewis Nedas Law) for the Defendant
Approved Judgment
The issue that arises today is whether the court can refuse to accept undertakings which a party has agreed to give to the Court as part of a settlement of a civil claim.
The background is as follows. The claim was commenced on 23 December 2021. The Claimant complained that she had been the subject of a campaign of anonymous online harassment by the Defendant. Additional claims for misuse of private information and breach of the Claimant's data protection rights were also included.
In summary, the Claimant alleged that the Defendant had, from 9 November 2020 to 25 May 2021, conducted a campaign of harassment including
i) the creation and operation of social media accounts impersonating the Claimant and/or disseminating private information about her, and otherwise misusing her private information and personal data. Posts from these accounts, including manipulated pornographic images, were set out in the schedule to the Particulars of Claim;
ii) threats made via anonymous texts and online. These included threats of violence, a threat to deceive the police into sending an armed response team to the Claimant's home address and arson;
iii) misusing the Claimant's email address, phone number and postal address by signing her up to receive unwanted services and messages and providing these details to third parties, including far right hate groups and fetish websites; and
iv) attempts to access and/or shut down the Claimant's own social media account, including by submitting a false report that she had died, to Twitter.
On 29 December 2021, the Claimant made a Part 36 Offer in full and final settlement of her claim. The material terms of that were:
i) the payment of £49,975 in damages from the Defendant; and
ii) within 14 days provision of a signed undertaking to the court from the Defendant that he would not:
“(1) 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.
(2) Attempt to impersonate the Claimant.
(3) 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.
(4) Attempt to contact the Claimant by any medium or any platform, including but not limited to telephone or any form of text, email, instant electronic messaging service, in person or otherwise either directly or indirectly save through lawyers or where he is required to do so under a contract of employment for legitimate purposes.
(5) Attempt to contact by any medium or any platform individuals who he knows or suspects are friends, family, acquaintances and/or colleagues of the Claimant save where he is legitimately required to do so under a contract of employment.
(6) Knowingly approach within 50 metres of the Claimant save where he is legitimately required to do so under a contract of employment.
(7) Otherwise engage in any activity that amounts to harassment of the Claimant or any other activity that is likely to cause her distress.
(8) Will not (sic) encourage or permit any third parties to engage in any of the above acts on his behalf”.
On 15 July 2022, the Defendant made a counteroffer by way of a Part 36 Offer, expressed to be without an admission of liability, to settle the whole of the Claimant's claims in all jurisdictions. Essentially, this offer was in similar terms to the Claimant's offer, save that:
i) the Defendant offered the sum of £35,100 in damages; and
ii) in the undertaking, he deleted paragraphs 5 and 6 and made a minor amendment to paragraph 5 to cater for contact with individuals with whom he has a pre-established relationship.
The Defendant's Part 36 Offer was not accepted by the Claimant. On 24 August 2022, the Defendant's solicitors completed and signed the proforma notice of acceptance that had accompanied the Claimant's Part 36 Offer of 29 December 2021. Expressly, the Defendant was stated to accept the offer to settle pursuant to CPR 36.11.
On 8 September 2022, the Claimant issued an application notice seeking: “ an order in the form attached reflecting that the claim has been settled and incorporating undertakings the Defendant has given to the court”.
The attached consent order provided:
“UPON the Defendant accepting the Claimant's part 36 offer dated 29 December 2021
AND UPON the Defendant undertaking to the court not to carry out the acts set out in the schedule of this consent order, and upon the Defendant acknowledging that he understands the terms of his undertaking to the court and the consequence of not complying with it
BY CONSENT IT IS ORDERED AND DIRECTED that
(1) The Defendant pay the Claimant the sum of £49,975 in damages by 4 p.m. on 7 September 2022.
(2) The claim is to be stayed save for the purposes of enforcement of the interim costs orders and any application by the Claimant for permission to read a statement in open court pursuant to paragraph 3.2 of Practice Direction 53B.
(3) The Defendant is to pay the Claimant's costs of the claim in a sum to be assessed if not agreed”.
The Consent Order was signed by the Defendant dated 5 September 2022. The Order had endorsed, upon the front page, a penal notice, in conventional terms, warning the Defendant that, were he to breach the undertaking he had given to the court, he might be found in contempt and face penalties ranging from a fine to imprisonment. The undertaking in the schedule to the Order was in the same terms as had been set out in the Claimant's Part 36 Offer. At the foot of the undertaking was the following signed by the Defendant personally on 7 September 2022:
“(A) I acknowledge that I understand the terms of this undertaking to the court and the potential consequences of failing to comply with it.
(B) Specifically I acknowledge that I understand that if I breach this undertaking to the court then I may be (a) found to be in contempt of court and may be imprisoned, fined or have my assets seized; (b) liable to pay the Claimant damages and/or legal costs and (c), the subject of criminal complaint and prosecution.
(C) I acknowledge that I have received independent legal advice on (i) the terms of the undertaking and wider consent order; (ii) the consequence of breaching the undertaking and (iii) the claim generally”.
Thereafter, on 22 September 2022, the Claimant issued an Application Notice seeking permission to read a Statement in Open Court, pursuant to CPR Practice Direction 53B paragraph 3.1. Permission was granted by Choudhury J, on 23 September 2022, and the Statement in Open Court was read on 11 October 2022.
The Application Notice of 8 September 2022, with the consent order, was referred to me on 10 October 2022, the day before the Statement in Open Court was listed to be read. An email was sent to the Claimant's solicitors, asking whether the Defendant's solicitors would be attending the reading of the Statement in Open Court, and stated: “ The judge is concerned at the breadth of the undertaking and whether it is one that is appropriately given to the Court. He shall wish to address these matters at the hearing tomorrow”.
The Claimant's solicitors responded that they and their counsel were not available for a hearing that following day. As to the concerns as to the terms of the undertaking, the Claimant's solicitors said:
“We believe it reflects the mischief alleged within the pleadings that the undertaking has been freely given by the Defendant with the benefit of legal advice and its breadth has never been the subject of dispute between the parties. Paragraphs (4), (5) and (6) contain carve outs”.
On 25 October 2022, a further email was sent by the Court to the parties:
“There is no doubt that the parties to a civil claim can agree whatever terms of settlement they wish. However, when it comes to the Court accepting undertakings from one of the parties, the Judge is concerned to establish what the Court's jurisdiction is when it is asked to accept undertakings by a party as part of a settlement. Can the Court refuse to accept undertakings on the grounds that the court would not, by injunction, grant such relief, (for example, terms too vague/broad) if so, what principles does the Court apply? Can the Court accept some of the undertakings or, respecting the contractual nature of the settlement, is...
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