In a recent decision, the High Court agreed not to hand down judgment where the parties had reached settlement following circulation of the draft judgment, and that settlement was conditional on the judge agreeing not to hand down judgment: Beriwala v Woodstone Properties (Birmingham) Ltd [2021] EWHC 609 (Ch).

The decision helpfully summarises the court’s approach in deciding whether to hand down judgment in such cases. The wishes of the parties are taken into account but are not determinative. The court will weigh up the private interests of the parties against any public interest in handing down the judgment in the particular circumstances of the case. Relevant factors might include whether the case raises a point of law of general interest, or some wrongdoing which should be exposed. Where (as in this case) handing down judgment would be likely to lead to further litigation, which would otherwise be avoided as a result of the settlement, that was itself a public interest consideration and gave a strong reason against handing down judgment.

It is clear from the decision that the fact that a draft judgment has been circulated before settlement is itself a relevant factor, though it does not give rise to a presumption. It should also be noted that, where judgment has been reserved, parties have a duty to inform the court immediately if they become aware of any development which may make it unnecessary for judgment to be delivered.

Background

On 19 February 2021 a draft judgment was sent to the parties with a request that they provide typing corrections or obvious errors by 23 February. When providing corrections, the claimant sought to raise a further issue, on which the judge invited submissions. On 4 March, the judge declined to make any findings in respect of that further issue and indicated that he would hand down the judgment the following day.

Later that day, the parties requested the judge to defer handing down judgment until 9 March 2021 to allow them to continue settlement discussions. The judge agreed and, on 8 March, he was informed that the parties had agreed a settlement, conditional on the judge agreeing not to hand down judgment.

Decision

The judge (Deputy Judge Robin Vos) agreed not to hand down his judgment, but set out his reasons for that conclusion in a written judgment.

The judge noted that the purpose of supplying a draft judgment to the parties (under Practice Direction 40E) is to enable the parties to consider consequential orders and to suggest any proposed typographical corrections or the correction of obvious errors. The circulation of the draft judgment is not intended to facilitate settlement discussions.

However, even where the draft judgment has been provided to the parties, the court retains a discretion as to whether or not to hand down judgment, as confirmed in Prudential Assurance Company Ltd v McBains Cooper (a firm) [2000] 1 WLR 2000. In Barclays Bank Plc v Nylon Capital LLP [2011] EWCA Civ 826 (considered here), the court referred to a number of factors which might justify handing down a judgment against the wishes of the parties. It said that where the case raises a point which it is in the public interest to ventilate in a judgment, that would be a “powerful reason” for proceeding, for example: where there is a point of law of potential general interest; where an appellate court is differing from the court below; or where some wrongdoing or other activity should be exposed. The extent to which the judgment had been prepared would also be relevant, as in general it would be a “highly questionable” use of judicial time to prepare a judgment on an issue which was no longer live between the parties, and conversely (though to a lesser extent) it could be said it would be a waste of judicial effort if a completed judgment was not handed down

In Barclays v Nylon, the draft judgment had not been circulated before settlement was agreed, but the judge in the present case said the same factors would potentially apply whether or not the parties have seen the draft judgment. It is clear from the authorities that the court must weigh up both the private interests of the parties and any public interest in handing down the judgment. The question of whether the draft judgment has been provided to the parties is a relevant factor, but there is no presumption in favour of handing down where the draft judgment has been provided.

Applying those principles, the judge concluded that the factors in favour of not handing down the judgment significantly outweighed the factors to the contrary in the present case. Factors in favour of handing down included that the judgment had been prepared and provided to the parties, and that there was one point of law relating to Quistclose trusts which “could be interesting”, though it was “unlikely to be relevant in many cases”. Factors against handing down included the following:

  • Both parties had requested that the judgment should not be handed down, and in the absence of good public interest reasons to the contrary such wishes should be given “considerable weight”.
  • Third parties were not affected in any significant way, and there was no dominant or powerful party seeking to suppress a judgment by buying off the other party as part of a settlement.
  • The judgment was based almost entirely on factual findings relating to the terms of the agreements reached between the parties.
  • There were no allegations of dishonesty or other behaviour which it might be in the public interest to be made public.
  • In the absence of settlement, there were further issues that would need to be resolved through litigation. This was a strong reason against handing down judgment. As the judge put it, “avoiding further litigation and therefore the use of court resources is itself a public interest consideration and not just a matter relating to the private interests of the parties”.
Anna Pertoldi
Anna Pertoldi
Partner
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Maura McIntosh
Maura McIntosh
Professional support consultant
+44 20 7466 2608