An undertaking given in the face of the court need not be signed; and a firm reminder for litigants in person to follow the court’s procedure

Luke Pardey

In Bakir v Downe, Mr Justice Mostyn, sitting in the Family Division of the High Court, has delivered a succinct and pointed judgment confirming that an undertaking given in the face of the court need not be signed to be enforceable, or to be recorded in the court’s order.

Mr Downe (who was at times a litigant in person) gave an undertaking to the court in the course of a hearing, which he later refused to sign when counsel for his opponent reduced it to writing. A draft order was nevertheless submitted to Mostyn J, which included the wording of the undertaking that Mr Downe had refused to sign, and the order was made.

Unhappy with this turn of events, Mr Downe corresponded with Mostyn J’s clerk, disputing the propriety of the unsigned undertaking finding its way into the court’s order. After repeated email enquiries from Mr Downe, Mostyn J listed the matter for a hearing to resolve the issue.

Perhaps of greater note than the obvious conclusion that a clear and unequivocal undertaking given to the court is binding even if not set out in writing or signed, are some of his Lordship’s more stinging obiter remarks. The first shot was directed at “an austere government” that had forced self-representation on indigent litigants by having “withdrawn almost all legal aid from private family law business”. Mr Downe was not an indigent litigant, however, and Mostyn J expressed little sympathy for the manner in which he had pursued his complaints about the making of the order, recording in his judgment that:

…the court does not afford any indulgences or deviations to the litigants in person from the clear procedure that is prescribed…for all applications that are made to the court. The court is not some kind of advice bureau for the benefit of litigants in person who do not understand how orders have been made. If a litigant in person wishes to make an application to the court, then he must do so in accordance with the procedure laid down by the law of the land.”

Had Mr Downe had self-representation thrust upon him, or indeed had he not subsequently signed a very similar undertaking given at a later stage to Mr Justice Moor such that his complaint to Mostyn J was largely moot, his Lordship might not have concluded his judgment with the direction that it “be placed on Bailii in an unanonymised form”.

Bakir v Downe [2014] EWHC 3318 (Fam)

Post By Luke Pardey (3 Posts)

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