Smith v Backhouse

Reference: [2022] EWHC 3011 (KB)

Court: High Court of Justice, King's Bench Division

Judge: Mr Justice Nicklin

Date of judgment: 8 Nov 2022

Summary: Enforceability and acceptance of undertakings - Settlement

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Appearances: Ben Hamer (Claimant) 

Instructing Solicitors: Brett Wilson LLP (for C); Lewis Nedas Law (for D)

Facts

The Claimant brought a claim for an injunction and damages against the Defendant for harassment, defamation and breach of the GDPR. The parties agreed on a settlement, which included undertakings from the Defendant who agreed 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) Encourage or permit any third parties to engage in any of the above acts on his behalf.

The court was asked to determine whether the undertakings were enforceable and should be accepted as undertakings given to the court.

Issue

Whether the court should accept the undertakings agreed upon by the parties, considering their clarity and enforceability.

Held

The court accepted the Defendant’s undertakings in the terms of paragraphs (4), (5), (6), (7), and (8). In particular, the Judge noted that while the Court would not ordinarily grant an injunction in the terms of paragraph (7), he would accept such an undertaking where it had been agreed between the parties and such conduct was itself prohibited by statute.
However, it refused to accept undertakings (1), (2), and (3) as they were considered too wide.

Comment

This judgment is an important one, finding that the court is not bound to accept all undertakings agreed upon by the parties. The Judge gave the Claimant permission to appeal to the Court of Appeal.