Can a court refuse to enforce an undertaking in a cause where the undertaking was given under an admitted mistake?
British Columbia, Canada
The following excerpt is from Bank of British Columbia v. M., 1979 CanLII 580 (BC SC):
I have given consideration to the case of Mullins v. Howell (1879), 11 Ch. D. 763, cited by the defendant. That case is mentioned in Cordery in support of the statement that the court may refuse to enforce summarily an undertaking in a cause where the undertaking was given under an admitted mistake. But the facts in Mullins v. Howell show that the plaintiff in that case was not out of pocket, the terms of the consent were previously incorporated into a memorandum of agreement, and the undertaking of counsel which was the basis for the consent judgment in that case was given as a result of a mistake of counsel for the defendant. It was therefore a case where there was no injustice to the plaintiff to decline to enforce the undertaking and it would have been oppressive to enforce the undertaking. Although I sympathize with the defendant in the case at bar, because I consider that she was guilty of an error of judgment, I do not consider that this is a case where the court should not enforce the undertaking.
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