The plaintiff’s marriage had been dissolved and her former husband was ordered to pay her maintenance at a specified rate. The husband subsequently filed evidence that he was unable to comply with that order but offered to undertake to pay one-third of his income to the plaintiff. An order was made in 1939 in those terms, but there was no recital of consent by the plaintiff or other indication that the undertaking was part of a contractual bargain between the parties. The husband remarried and later died. The plaintiff claimed against the husband’s executrix, his second wife, an account in respect of arrears of maintenance payable under the 1939 order.
Held: The claim failed. An undertaking to the court did not confer any personal right or remedy on any other party and that, since there was no evidence of any collateral contract between the parties which might have given rise to a debt recoverable at law, the plaintiff had no cause of action against the husband or his estate for any arrears. There was no right to sue a contemnor for the contempt alone and there is no civil right to damages and no power for the court to award compensation to the other party for the contemnor’s actions. The principle upon which the court acts on an application for a release of an undertaking given to it is to ascertain whether good cause for such a release is shown.
Buckley J said: ‘The only sanction for breach of an undertaking would be the imprisonment of the culprit or sequestration of his assets or a fine on the ground of his contempt of court. An undertaking given to the court, unless the circumstances are such that it has some collateral contractual operation between the parties concerned, confers no personal right or remedy upon any other party. The giver of the undertaking assumes thereby an obligation to the court but to nobody else.’
Buckley J analysed the differences between an order to pay money and an undertaking: ‘[The 1939 order] contained an undertaking given by the deceased to the court to pay one-third of his income to the plaintiff, but such an undertaking has not, in my judgment, the same effect as an order to pay. An order to pay may be enforced in the same manner as a judgment; R.S.C., Ord. 42, r. 24 . . An undertaking, however, is not an order. It is true that an undertaking to do or abstain from doing something other than payment of money may have the same effect as a mandatory or a restrictive injunction; for a breach of such an undertaking, like a breach of an injunction, exposes the culprit to the risk of imprisonment or possibly of sequestration or a fine. These are penal sanctions aimed at enforcing compliance with either a promise made to the court or an order of the court, as the case may be. They are not remedies the purpose of which is to compensate some other party for damage he has suffered as the result of the breach or for recovering any property or enforcing any right of his. In most cases, at any rate, an order to pay money is of a wholly different character and produces quite different results from an undertaking given to the court to pay something. In the first place an order to pay money is most usually, though not always, a consequence of the person to be paid having established a right to payment of the sum in question. The order having once been made, the court would not revoke or vary it. Where, on the other hand, no order for payment has been made but an undertaking has been given to the court to make a payment, the court could at any time upon good cause being shown release or modify the obligation under the undertaking. Secondly, any order for payment to which R.S.C., Ord. 42, r. 24, applies may be enforced by the party who has obtained it in the same manner as a judgment to the like effect. He could, for instance, recover the sum by means of levying an execution or attaching a debt. But an undertaking could not be enforced by such means. The only sanction for breach of an undertaking would be the imprisonment of the culprit or sequestration of his assets or a fine on the ground of his contempt of court. An undertaking given to the court, unless the circumstances are such that it has some collateral contractual operation between the parties concerned, confers no personal right or remedy upon any other party. The giver of the undertaking assumes thereby an obligation to the court but to nobody else.’
Judges:
Buckley J
Citations:
[1966] Ch 209, [1966] 1 All ER 110
Jurisdiction:
England and Wales
Cited by:
Mentioned – Di Placito v Slater and others CA 19-Dec-2003
The parties had earlier compromised their dispute, with the claimant undertaking not to lodge any further claim unless he did so within a certain time. They now sought to commence action.
Held: When considering whether to discharge such an . .
Cited – HM Customs and Excise v Barclays Bank Plc HL 21-Jun-2006
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
Cited – Sectorguard Plc v Dienne Plc ChD 3-Nov-2009
The claimant alleged misuse of confidential information in the form of its customer list, and its charges to them. The defendant company was run by former employees of the claimant. A later allegation was made of accessing the defendant’s private . .
Cited – Hussain v Vaswani and Others CA 18-Sep-2020
Breach of Undertaking went Beyond Debt
The tenant had obtained a stay of execution of a warrant for possession, by undertaking to discharge the arrears. He failed to pay, and the Court now considered whether such a failure was a contempt with a possible imprisonment for punishment. The . .
Cited – JSC BTA Bank v Khrapunov SC 21-Mar-2018
A had been chairman of the claimant bank. After removal, A fled to the UK, obtaining asylum. The bank then claimed embezzlement, and was sentenced for contempt after failing to disclose assets when ordered, but fled the UK. The Appellant, K, was A’s . .
Lists of cited by and citing cases may be incomplete.
Contempt of Court
Updated: 09 September 2022; Ref: scu.194064
