The High Court has held that it was within the court’s power to hand down a reserved judgment where the proceedings had settled before the draft judgment was circulated. There was no need for the court to be satisfied that there were exceptional circumstances. The proper approach was to weigh the public interest for and against handing down judgment: Jabbar & another v Aviva Insurance Ltd & others [2022] EWHC 912 (QB).

Although the relevant judgment in this case related to applications during the course of proceedings, the same principles would apply to a reserved final judgment on the merits.

The decision shows that there may be a greater likelihood of the court handing down judgment after settlement in cases where it addresses novel points of law or serious accusations against one of the parties, such as malice or dishonesty.

Parties who engage in settlement negotiations while awaiting a reserved judgment should bear in mind that the court can still deliver a judgment if settlement is reached, even if it has not yet circulated a draft judgment. If settling parties are in agreement that judgment should not be delivered, it would be advisable to make this known; although such an agreement will not bind the court, it will be a relevant factor.

The court may also take into account whether the settlement agreement is conditional on the court agreeing not to hand down judgment. Here it was “of some significance” that the parties’ consent order did not proceed on the basis that the judgment would not be handed down, and therefore publication of the judgment did not risk undermining the settlement. In a previous decision (considered here) the fact that the settlement was conditional, and therefore handing down judgment would be likely to lead to further litigation, was found to give a strong reason against publication.

Parties should also remember that they have a duty to inform the court immediately if “meaningful settlement discussions” take place after judgment has been reserved.

Background

The first claimant, Dr Jabbar, had a practice (through the second claimant company) providing medico-legal reports in road traffic personal injury claims. The defendants were insurance companies often involved in personal injury claims. The proceedings concerned claims of defamation, conspiracy to injure and other actions arising from certain emails regarding Dr Jabbar that the defendants had sent to personal injury solicitors in the context of correspondence pursuant to a pre-action protocol.

A deputy master heard an application by the defendants for strike-out and summary judgment, alongside the claimants’ application to plead additional causes of action. On the day she intended to circulate her draft judgment, the claimants notified her that the proceedings had been settled the previous evening, and requested that judgment therefore not be handed down. The defendants subsequently requested that judgment still be handed down on the basis that it would be in the public interest in several respects, including that it would address a novel point of law as to whether the defence of absolute privilege applied in the context of pre-action correspondence.

After receiving the parties’ submissions on the issue, the deputy master concluded that she did have a discretion as to whether or not to hand down the judgment, without needing to be satisfied that there were exceptional circumstances. Exercising that discretion, she concluded that it was in the public interest for the judgment to be handed down in this case. The claimants appealed.

Decision

The High Court (Mr Justice Chamberlain) dismissed the appeal.

Existence of discretion

The claimants relied on the Court of Appeal’s decision in Prudential Assurance Co Ltd v McBains Cooper [2000] 1 WLR 2000 to submit that the general discretion to hand down a judgment after settlement only arose where the settlement occurred after circulation of the draft judgment and that, otherwise, exceptional circumstances were required before such a discretion arose.

Examining the authorities, Chamberlain J acknowledged that one reason for courts having the discretion to hand down judgments after settlement was to avoid powerful parties being able to pick and choose which judgments they were happy to be made public – and which they would pay to avoid being made public, by settling the proceedings. That was of course only relevant where settlement occurred after the parties had seen a draft judgment. However, that was not the only reason supporting the court having such a discretion.

The court noted that Prudential was a case where the settlement was reached after the circulation of the draft judgment, so the Court of Appeal had not had to decide the question in relation to a settlement before circulation. However, the latter situation arose in Barclays Bank Plc v Nylon Capital LLP [2011] EWCA Civ 826 (considered here), where the court did not rely on a test of exceptional circumstances and instead approached the issue by weighing the public interest considerations in favour of and against giving judgment.

The relevant test was therefore no different whether the case settled before or after the hand down process began, or whether it was a first instance decision or an appeal. Where a case involved a novel point of law, the public interest in handing down might be stronger if the judgment was of an appellate court, but even a first instance judgment on a novel point could provide useful guidance and contribute to the law’s development.

Exercise of discretion

Chamberlain J considered that there was no error in the way the deputy master had exercised her discretion. The legal issue regarding the availability of the absolute privilege defence was a novel and important one, and the judgment on that issue would assist parties in such proceedings, as well as potentially an appellate court called on to consider the issue.

Further, there was a public interest in publishing the court’s conclusions regarding allegations of malice and dishonesty which Dr Jabbar had made against the insurers.  In that regard, the conclusion that the claims fell to be struck out (largely on the basis that the pleadings were inadequate) was as much a vindication of the insurers as a determination on the merits would have been.

Conversely, while containing no findings of fact about Dr Jabbar the judgment contained observations which might interest those considering instructing her, as well as defendants in litigation featuring her reports.

Relevance of the parties’ views

Chamberlain J noted that, like the deputy master, he considered it relevant that one of the parties wished the judgment to be handed down.

It was also “of some significance” that the consent order did not proceed on the basis that the judgment would not be handed down, and so doing so did not risk undermining the finality of the settlement.

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