Law Report: Undertaking required formality: HM Attorney General v Mantoura. Queen's Bench Divisional Court (Lord Justice Woolf and Mr Justice Pill), 31 July 1992

An undertaking given to a court by a person who was not a party in the case would only be enforceable by proceedings for contempt if the plainest indication had been given that the undertaking was formally accepted as such.

The Queen's Bench Divisional Court dismissed the Attorney General's application to fine or imprison the respondent, Jack Home Mantoura, for his alleged contempt of court in breaching an undertaking, given to Judge Rivlin QC in Southwark Crown Court on 23 July 1990, to repay pounds 25,000 to the victim of a theft committed by his son, Theo Jack Guy Mantoura.

The respondent claimed his offer had been made 'with the hope that it would assist in obtaining a non-custodial disposal for his son' and was not accepted by the judge, who had sentenced his son to two years' jail, nine months of which was suspended for two years.

Andrew Collins QC (Treasury Solicitor) for the Attorney General; James Munby QC (Ewings & Co) for the respondent.

MR JUSTICE PILL said that before sentence was passed, the respondent had given evidence stating that he was prepared to pay what he and his family regarded as a debt of honour, and that he was prepared to give an undertaking to the judge. The judge stated that he took into account the attitude of the family and everything the respondent had said, but that he could not make an order in relation to the matter. But when sentencing, he said it made it possible for him to order that the respondent's son should only serve part of his sentence.

His Lordship was very doubtful whether it was appropriate in the circumstances to accept such an undertaking. It was only in rare circumstances that a court should consider accepting an undertaking from a third party instead of, or in support of, a compensation order.

Even if it was proper to accept the undertaking, the procedure actually followed did not create a situation in which it was appropriate to enforce the undertaking in contempt proceedings.

The plainest indication had to be given that an undertaking, as distinct from preparedness to give an undertaking, was given and accepted by the court as such. Its terms, including the date of payment, should be plainly set out. Bearing in mind the possible consequences, it should be put in writing and recorded by the court. Formality was required in such a situation. LORD JUSTICE WOOLF agreed.