Dr Erica Smith v Dr Christopher Backhouse
| Jurisdiction | England & Wales |
| Judge | Lady Justice Asplin,Lord Justice Arnold,Lord Justice Warby |
| Judgment Date | 21 July 2023 |
| Neutral Citation | [2023] EWCA Civ 874 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-002421 |
[2023] EWCA Civ 874
Lady Justice Asplin
Lord Justice Arnold
and
Lord Justice Warby
Case No: CA-2022-002421
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Mr Justice Nicklin
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugh Tomlinson KC and Ben Hamer (instructed by Brett Wilson LLP) for the Appellant
The Respondent did not appear and was not represented
Naina Patel, Advocate to the Court (Instructed by The Treasury Solicitor)
Hearing date: 11 July 2023
Approved Judgment
This judgment was handed down remotely at 3.30 p.m. on 21 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This appeal is concerned with the circumstances in which the court can refuse to accept undertakings which a defendant has agreed to provide to the court as part of accepting a Part 36 offer made by the claimant. The issues arise in the context of a claim for relief pursuant to sections 1 and 3, Protection from Harassment Act 1997, and in relation to misuse of private information and unlawful, unfair and inaccurate processing and processing without appropriate security of personal data pursuant to the General Data Protection Regulation (EU) 2016/679, the UK GDPR and the Data Protection Act 2018.
The Appellant, Dr Erica Smith (“Dr Smith”) appeals paragraph 1 of the order of Nicklin J dated 8 November 2022 (“the Order”) by which the judge refused to accept paragraphs (1), (2) and (3) of the undertaking sought by Dr Smith in her Part 36 offer (and referred to as a, b and c in the offer itself) which the Defendant, Dr Christopher Backhouse (“Dr Backhouse”), accepted and agreed to give to the court. The judge accepted paragraphs (4) – (8) of the undertaking (referred to as d, e, f, g, and h in the offer), however.
Dr Smith appeals on the following bases, namely, that the judge: (i) was wrong in law not to accept proper and enforceable undertakings which had been agreed between legally represented parties on the acceptance of a Part 36 offer where they were not illegal, immoral or equivocal and there were no “other exceptional circumstances”; (ii) in any event, the judge was wrong in law to find that the undertakings were too broad; (iii) further and in any event, he was wrong to find that they were too vague; and (iv) he was wrong to reject the undertakings entirely rather than accepting them subject to provisos narrowing their terms to meet his concerns.
Dr Smith was represented before us by Mr Tomlinson KC and Mr Hamer. Dr Backhouse, however, was not represented and did not appear before us. Instead, the judge, who gave permission to appeal, suggested that the Court consider asking the Attorney General to appoint an advocate to the Court to ensure that the point was properly argued. Warby LJ subsequently invited the Attorney General to consider appointing an advocate to the court. Ms Patel fulfilled that role, for which we are grateful.
Background
Dr Smith is a physicist and post-doctoral fellow at Indiana University. Dr Backhouse was formerly a Royal Society University Research Fellow in the Department of Physics and Astronomy at University College London. They both conducted research at Fermilab, a collaborative research facility.
Dr Smith's claim as pleaded was concerned with a campaign which was conducted between 9 November 2020 and 25 May 2021 which included: the creation of social media accounts impersonating her; the misuse of her private information and personal data, including the dissemination of manipulated pornographic images that falsely purported to be her; anonymous texts and online messages including threats of violence, a threat to “swat” her (which was a reference to an intention to deceive the police into sending an armed response team to her home address) and threats of arson; misusing her details such as her 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 subscriptions to far right hate groups and fetish websites; and attempts to monitor, access and/or shut down her personal social media account, including by submitting a report to Twitter stating that she had died.
Dr Smith's claim was issued on 23 December 2021. She made a Part 36 offer on 29 December 2021 (“Dr Smith's Part 36 Offer”). The material terms of Dr Smith's Part 36 Offer were: i) the payment of £49,975 in damages by Dr Backhouse; and ii) within 14 days provision of a signed undertaking to the court by Dr Backhouse 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.
A defence was filed on 10 February 2022 and Dr Backhouse made a Part 36 offer on 15 July 2022 in which he offered to make a payment of £35,100 to Dr Smith and to provide a signed undertaking (not expressed to be to the court) in similar terms to paragraphs (1) – (5) and (7) of the undertaking set out in Dr Smith's Part 36 Offer. Dr Backhouse's offer was not accepted. On 24 August 2022, however, Dr Backhouse accepted Dr Smith's Part 36 Offer in full and final settlement of her claim. That acceptance rendered Dr Backhouse liable to pay £74,000 odd in costs.
A draft Consent Order was signed by Dr Backhouse on 5 September 2022, and the undertaking containing paragraphs (1) – (8) was signed personally by Dr Backhouse on 7 September 2022. Both Drs Smith and Backhouse were legally represented at that stage. The draft Consent Order provided as follows:
“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 draft Consent Order had a penal notice, in conventional terms, endorsed on the front page, warning Dr Backhouse 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 draft Consent Order was in the same terms as had been set out in Dr Smith's Part 36 Offer. At the foot of the undertaking was the following signed by Dr Backhouse personally:
“(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”.
The draft Consent Order was filed at Court on 8 September 2022 with an application notice seeking an order in those terms “reflecting that the claim has been compromised by way of acceptance of CPR Part 36 offer and should be stayed on the terms set out therein” and that “the claim has been settled on the terms agreed between the parties reflected in the signed consent order filed herewith”.
Further, on 22 September 2022, an application notice to read a Statement in Open Court was issued on Dr Smith's behalf and was granted by Choudhury J on 23 September 2022. The statement was read on 11 October 2022. On 10 October 2022, however, an email was sent to the...
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