Court hands down judgment, after parties have settled

In Jabbar & Anor v Aviva Insurance UK Ltd & Ors [2022] EWHC 912 (QB), the High Court dismissed an appeal against the handing down of a decision, in circumstances where the parties had already settled. While the parties to the underlying dispute had filed a consent order with the court, the order was silent on the parties’ wishes in respect of the subsequent judgment.

The High Court’s decision sets out the position as to when a court has jurisdiction to hand down a judgment, while the facts of the case suggest potential solutions that may be of interest to parties who wish to ensure that a judgment is not handed down post-settlement.

Background

The first claimant, Dr Jabbar, has a practice providing reports for personal injury claims arising from road traffic accidents. The second claimant is a company, incorporated by her, to collect fees from and administrate this practice.

The defendants are insurance firms who were often “in essence the defendants” to those personal injury claims.

The claim arose from emails sent by the defendants to the claimants’ solicitors. The Amended Particulars of Claim pleaded (i) conspiracy to injure; (ii) unlawful means conspiracy; (iii) tortious interference with contract; and (iv) defamation. The defendants applied to strike out all four causes of action and summary judgment of the defamation claim. This latter application involved the issue of where a defence of absolute privilege applied to answers to CPR Part 35 requests under a pre-action protocol. The claimants applied to re-amend to plead claims in malicious falsehood and under data protection legislation.

These applications were heard on 26 May 2021, following which Deputy Master Toogood reserved her judgment.

Settlement

On 11 June 2021, the claimants’ solicitors informed Master Toogood that the parties had reached a settlement and that a consent order had been filed. The consent order’s terms included that the claim be dismissed. The claimants’ solicitor requested that judgment was not handed down.

Later that day, Master Toogood informed the parties that she had already written her draft judgment in respect of the strike-out, summary judgment and amendment applications (the Applications Judgment). The defendants’ solicitor emailed Master Toogood, requesting that the Applications Judgment be handed down.

Handing down

On 25 June 2021, Master Toogood handed down Jabbar & Anor v Aviva Insurance UK Ltd & Ors [2021] EWHC 1729 (QB) (the Handing Down Judgment), in which she set out the general principle that she had authority to hand down the Applications Judgment. Applying that principle to this matter, she found the issue of whether absolute privilege should apply to answers given under CPR Part 35 pursuant to a pre-action protocol was previously undecided and that there was a “clear public interest in publishing a judgment that addresses a point of law which has been previously undecided and which has been the subject of detailed argument and consideration by the court.”

The judge concluded that such public interest outweighed the claimants’ request that the Applications Judgment not be handed down. However, she indicated that she would not hand down the Applications Judgment until any appeals against the Handing Down Judgment had been resolved.

Appeal

Mr Justice Chamberlain heard the claimants’ appeal. His judgment found that Master Toogood’s analysis of the law regarding her discretion was correct, and that her consideration and application of the relevant factors could not be faulted, being reasoned and balanced.

Takeaways

Mr Justice Chamberlain noted the significance of the consent order not being drafted as conditional upon the Applications Judgment not being handed down. Whether it is a condition of a settlement that judgment is not handed down is a relevant factor for judges to consider when determining whether to exercise their discretion to hand down a judgment post-settlement. The context being that it is desirable for the courts to encourage settlement and finality of litigation.

Where parties do not wish for a judgment to be handed down, they may wish to consider drafting any settlement to be conditional upon judgment not being handed down.

Such an approach, the court’s general authority to hand down a judgment post-settlement, and the factors the court will consider are discussed in further detail in an earlier article: When will the court still hand down a judgment if the parties have already settled?