Article by Katie Wilkinson
Commencing a claim for an injunction and damages under the Protection from Harassment Act 1997 can no doubt be a daunting prospect for individuals, particularly those who represent themselves as Litigants in Person.
Claimants usually seek an interim injunction to be put in place whilst the litigation proceeds to a conclusion.
Whether an interim injunction application is made ex parte, meaning without notice to the Defendant, or on notice to the Defendant, the Court will usually list a hearing within the space of a few days/weeks to consider whether an interim injunction should be granted and/or whether a previously granted interim injunction should continue.
It is common for the issue of undertakings to arise at the first hearing where a Defendant attends. Solicitors and Barristers are familiar with the offer and acceptance of undertakings, but Litigants In Person may not be so familiar.
An undertaking is effectively a promise made to the Court to be bound by certain requirements. In cases involving harassment, a party may, for example, offer an undertaking not to approach or speak to the complainant. Sometimes, an undertaking will be offered that is identical to the terms of the injunction sought.
A Court may decide to discharge an interim injunction and replace it with the offer of an undertaking from a Defendant. In other circumstances, a Claimant may agree to the replacement of an interim injunction with an undertaking and may even agree to compromise the entirety of the proceedings by way of undertaking.
Undertakings are not usually given on the admission of liability, therefore a Defendant offering an undertaking may do so on the basis that they deny any wrongdoing but will agree to refrain from certain actions going forward. The Court often views undertakings as ‘if I do not intend to harass X, where is the harm in not agreeing to harass X’.
Whilst a Claimant who feels victimised by harassment may find it difficult to accept an undertaking in circumstances where wrongdoing is denied, undertakings are often a sensible way to resolve disputes.
Litigation can be very expensive. The Court process can be lengthy, and the final determination of the claim can take months to achieve. A loss at trial to a Claimant who feels victimised may also be unpalatable.
An undertaking can act to de-escalate tensions and provide finality to parties who may struggle to pay for legal representation, or who may benefit from a swift end to the litigation.
A breach of an undertaking is actionable as a contempt of court and may result in a fine or imprisonment for the defaulting party. Undertakings are therefore extremely important and serious in their effect. Any party giving an undertaking will be made aware of the consequences of breach and may be required to sign the undertaking in the presence of a Judge.
Whilst an undertaking may not be the perfect solution for some Claimants, their value should not be underestimated, as undertakings are very often a sensible resolution to proceedings.