Sir John Donaldson MR said: ‘Let it be stated in the clearest possible terms that an undertaking to the court is as solemn, binding and effective as an order of the court in like terms and that the contrary has never been suggested . . Undertakings may be recorded in an order of the court, as occurred in this case, but it is the undertaking and not the order which requires the giver of the undertaking to act in accordance with its terms. If he fails to do so, he acts in breach of the undertaking, but cannot be said to refuse or neglect to act in accordance with the order which happens to record the undertaking or to disobey that order and it is to those offences alone that these two rules [on committal to prison] apply.’
He observed that ‘it is in all cases highly desirable that any undertaking to the court shall be recorded and served on the giver personally’. He went on to say, the ‘most obvious and convenient way . . is to record the undertaking in an order of the court’.
Neill LJ and Ralph Gibson LJJ agreed. Neill LJ said that: ‘the general practice to be adopted’ was that the ‘undertaking should be included in a recital or preamble in the order of the court’, which should be issued and served on the person who gave the undertaking with a penal notice. He went on to emphasise the importance of clarity and certainty in relation to what was required by any undertaking, and the consequences of it being breached. In a case where an undertaking has been given, even where the court makes no order, that ought itself be recorded in a formal order which should recite in full any undertaking that has been given.
Neill LJ agreed, saying that ‘the general practice to be adopted’ was that the ‘undertaking should be included in a recital or preamble in the order of the court’, which should be issued and served personally on the giver of the undertaking with a penal notice. He also emphasised the importance of clarity and certainty in relation to what was required by any undertaking, and the consequences of it being breached.
Judges:
Sir John Donaldson MR, Neill, Ralph Gibson LJJ
Citations:
[1986] Fam 134, [1986] 2 WLR 801, [1986] 1 All ER 961
Cited by:
Cited – Connolly-Martin v Davis CA 27-May-1999
A claim was brought by a party against counsel for his opponent who had gone beyond his authority in giving an undertaking for his client.
Held: The claim had no prospect of success, and had been struck out correctly. Counsel offering to the . .
Lists of cited by and citing cases may be incomplete.
Legal Professions, Litigation Practice
Updated: 02 May 2022; Ref: scu.424850
