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Jabbar & Anor v Aviva Insurance UK Ltd & Ors: High Court clarifies the scope of the court's jurisdiction to begin the process of handing down judgment after a case has settled

Overview

Summary

The High Court clarified that exceptional circumstances are not required to trigger the court's jurisdiction to hand down judgment after a case has settled. The test for determining whether or not a court should hand down its judgment is the same regardless of whether the case settles before or after circulation of the draft judgment, and whether the case is heard at first instance or on appeal. What is required is a balancing of the public interest considerations in favour of giving judgment against any arguments for not doing so.  

Factors relevant to the exercise of the court's discretion include:

  • whether the case involves a point of law of potential general interest;

  • whether there are allegations of dishonesty or credibility that need to be exposed publicly;

  • how far preparation of the judgment has got to by the time of settlement and the public interest in avoiding further expenditure of court time and resources;

  • the wishes of the parties; and

  • whether it was a condition of settlement that the judgment would not be handed down in the context of the desirability of encouraging settlement and finality in litigation.
Factual background

Dr Fatima Jabbar and a company owned and operated by Dr Jabbar, DRJ55 Ltd (the "Claimants") sued the multinational insurance company, Aviva PLC, and two of its subsidiaries (the "Defendants") alleging conspiracy to injure, unlawful means conspiracy, tortious interference with contract and defamation. Dr Jabbar had a substantial practice providing medico-legal reports for personal injury claims arising from road traffic accidents. The claim arose from letters and emails sent by the Defendants to solicitors acting for personal injury litigants about Dr Jabbar.

The Defendants applied to strike out all causes of action and for summary judgment in respect of the defamation claim. The Claimants also applied to re-amend their particulars of claim to plead claims in malicious falsehood and under data protection legislation. The hearing of all three applications came before Deputy Master Toogood on 26 May 2021 and she reserved judgment.

On the day that Deputy Master Toogood intended to circulate her draft judgment, the Claimants informed her that the parties had settled the proceedings and a copy of the signed consent order (recording the dismissal of the claims) had been filed at court. The draft consent order did not say anything, one way or another, about whether the judgment would be handed down. The Claimants requested that Deputy Master Toogood refrain from handing down the judgment. However, the Defendants disagreed, arguing that the general significance and public interest in the issues that the judgment would address, along with the fact that the draft judgment was at an advanced stage, weighed heavily in favour of the judgment being handed down.

The parties' submissions

The Claimants relied on the Court of Appeal decision in Prudential Assurance Co Ltd v McBains Cooper (a firm) & Ors [2000] EWCA Civ 172 ("Prudential Assurance"). In that case, the dispute settled after circulation of the draft judgment, but before it had been publicly handed down. The Claimants submitted that Prudential Assurance established that the process of handing down the judgment begins when a draft is first circulated to the parties' legal representatives and, only once this process has begun, does the court retain a discretion to continue the process of handing down the judgment regardless of whether exceptional circumstances apply. If the parties settle the dispute before circulation of the draft judgment, the complete settlement of the case by the parties will, in the absence of exceptional circumstances, remove the matter from the court. Exceptional circumstances were therefore required, and no such exceptional circumstances were identified in this case. The factors identified by the Defendants were not such as to make the case exceptional given that Deputy Master Toogood was sitting at first instance and her decision on a point of law would not be binding.

The Defendants submitted that Prudential Assurance only addressed the situation where the case settled after the draft judgment had been circulated and nothing in that case showed that exceptional circumstances were required to trigger the court's jurisdiction to hand down judgment. The Defendants relied on the Court of Appeal decision in Barclays Bank plc v Nylon Capital LLP [2011] EWCA Civ 826 ("Barclays Bank"), where, as in the present case, the parties settled the dispute before circulation of the draft judgment. Applying the reasoning in Barclays Bank, the Defendants argued that there was a general discretion to hand down judgment where it is appropriate to do so, regardless of whether settlement occurs before or after the draft judgment has been circulated to the parties. There was no requirement for exceptional circumstances to be present and, given the public interest in the previously undecided point of law, Deputy Master Toogood should exercise her discretion to hand down judgment.

Deputy Master Toogood's findings

Having considered the authorities, Deputy Master Toogood concluded that Barclays Bank was "highly relevant" because it dealt with the scenario where, as in this case, the draft judgment had not yet been circulated.  Applying Barclays Bank, she found that the court had a general discretion to hand down judgment notwithstanding the fact that the parties had settled the dispute. Deputy Master Toogood also concluded that no exceptional circumstances were required. However, even if they were, the fact that her judgment decided a previously undetermined point of law, which was both novel and important, was sufficiently exceptional to meet this requirement.

As set out in the Summary section above, Deputy Master Toogood identified several factors that the court should consider when determining whether to exercise its discretion. Applying each of the factors referred to above, Deputy Master Toogood decided – in a separate judgment that she did hand down – that there was a clear public interest in publishing her judgment which outweighed the Claimants' reasons for contending that it should not be handed down. The Claimants appealed.

The High Court's findings

Chamberlain J began by reiterating the principle that the decisions of appellate courts are only binding authority for the points they actually decide or on which the disposition of the case depends.  The Court of Appeal in Prudential Assurance did not have to consider, and did not consider, under what circumstances a first instance or appellate court could hand down judgment in a case which settles before the draft judgment has been circulated. The question did, however, come up in the case of Barclays Bank: not only was there no mention of exceptional circumstances, but the judgment clearly shows that what is required is a balancing of the public interest considerations in favour of giving judgment against any arguments for not doing so. This test is no different whether the case settles before or after the process of handing down the judgment has begun, and whether at first instance or on appeal.  

Having concluded that Deputy Master Toogood's analysis of the law was correct, the judge went on to find that Deputy Master Toogood's identification of the factors relevant to the decision to hand down judgment, and her application of those factors to the circumstances of the case, could not be faulted.  The appeal was therefore dismissed.

Commentary

Parties who engage in settlement discussions whilst awaiting a reserved judgment should bear in mind the following:

  • The judgment can still be handed down after the case has settled, regardless of whether exceptional circumstances apply and whether or not a draft has been circulated. If a party does not want the judgment to be handed down, they should seek to agree this with the other side and inform the court that it is a condition of the settlement; a term to this effect should also be included in the settlement documentation.  Although such a condition will not be binding on the court, it will be a relevant factor in the court's decision as to whether or not to hand down judgment.  In this case, for example, both Deputy Master Toogood and Chamberlain J noted that it was of some significance that the consent order did not proceed on the basis that the judgment would not be handed down and so publication of the judgment did not carry the risk of undermining the finality of the settlement.

  • Parties and their legal advisers are under a duty to inform the court of the possibility of settlement at the earliest opportunity so as to ensure that the court's resources are not wasted on preparing a judgment that is no longer required. This duty forms part of the overriding objective to ensure that the court's resources are properly and efficiently deployed amongst cases.  For more information on the scope of this duty, and the circumstances in which it is triggered, please refer to the Court of Appeal judgment in the case of HFC Bank Plc v HSBC Bank Plc [2000] EWCA Civ 461 (reported as 2000 WL 281405), where the court found that the obligation to notify the court arose as soon as the parties arranged a without prejudice meeting to discuss the possibility of settlement.   

The full judgment is available here: Jabbar & Anor v Aviva Insurance UK Ltd & Ors [2022] EWHC 912 (QB)

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