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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Jabbar & Anor v Aviva Insurance UK Ltd & Ors [2022] EWHC 912 (QB) (13 April 2022) URL: http://www.bailii.org/ew/cases/EWHC/QB/2022/912.html Cite as: [2022] 4 WLR 68, [2022] WLR(D) 177, [2022] EWHC 912 (QB), [2023] 1 All ER 845 |
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QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Strand, London, WC2A 2LL |
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B e f o r e :
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(1) DR FATIMA JABBAR (2) DRJ55 LTD |
Appellants |
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- and – |
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(1) AVIVA INSURANCE UK LIMITED (2) AVIVA INSURANCE LIMITED (3) AVIVA PLC |
Respondents |
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Adam Wolanski QC (instructed by BLM) for the Respondents
Hearing date: 5 April 2022
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Crown Copyright ©
Mr Justice Chamberlain :
Introduction
"Further to the hearing before you in the above matter on 26 May 2021, we write on behalf of the Claimants to confirm that this matter has now been settled by agreement between the parties.
We understand from the Defendants' solicitors that they filed a copy of the signed consent order in the attached terms with the Court via CE file yesterday afternoon
In the circumstances, given that the claim has now settled, we respectfully request that judgment not be handed down in this matter."
"Thank you for your email.
It is unfortunate that it did not occur to the parties to notify me sooner as I spent many hours yesterday writing my draft judgment and was intending to send it to the parties this morning.
However I note the consent order and that this matter has now been concluded."
"…our clients take a rather different approach to the claimants to the question of the judgment. Whilst our understanding is that it is entirely a matter for you as to whether judgment is handed down, our clients consider that this would be very beneficial and in the public interest, especially as the application involved issues of law of general significance/wider public interest. In particular, the application of absolute privilege to communications such as those which were the subject of these proceedings is of importance to our clients and, we anticipate, to all insurers, especially given the role played by insurers in the pre action processes for personal injury claims."
The defendants' solicitor referred to the decision of the Court of Appeal in Barclays Bank plc v Nylon Capital LLP [2011] EWCA Civ 826, [2012] Bus LR 542, before continuing:
"We would respectfully submit that the general significance of (and public interest in) the issues that you are considering in the judgment and the fact that the draft judgment is at an advanced stage weigh heavily in favour of judgment being handed down. Our clients would certainly, for example, consider any clarification of the law relating to the application of absolute privilege in this context to be of importance. In this respect we note that the claimants have provided no explanation as to why they consider that judgment should not be handed down."
The law
"It is elementary that parties to private litigation are at liberty to resolve their differences by a compromise, and that an unimpeached compromise represents the end of the dispute or disputes from which it arose: see Foskett, The Law and Practice of Compromise, 4th ed. (1996), P-90, citing Plumley v Horrells (1869) 20 LT 473, per Lord Romilly MR and Knowles v Roberts (1888) 38 ChD 263, 272, per Bowen LJ."
"It is clear to me that the resolution of this appeal turns on the nature of the exercise that is being performed from the moment the draft judgment is delivered to the parties in accordance with the new practice." (2006E-G)
"…under the new practice the process of delivering judgment is initiated when the judge sends a copy of it to the parties' legal advisers. Provided there is a lis in being at that stage, it will be in the discretion of the judge to decide whether to continue that process by handing down the judgment in open court or to abort it at the parties' request. I agree with the judge that there may well be a public interest in continuing the process, notwithstanding the parties' wishes that he should not do so, and that there can be no question of a judge being deprived of the power to decide whether or not to do so simply because the parties have decided to settle their dispute after reading the judgment which has been sent to them in confidence."
"one rule for first instance courts and a different rule for appellate courts. For the latter, it appeared to be conceded during the course of argument that this court might have a residual discretion to hand down its judgment notwithstanding the fact that the parties had compromised their dispute, if only to correct errors in the reported judgment in the court below or to reconcile conflicting lines of authority." (2009A-C)
"The parties had… not been shown the judgments which were going to be delivered at the time they settled their dispute, and this, in my judgment, makes all the difference."
"(a) Where a draft judgment is sent to the parties, and the action is compromised thereafter, the Judge has a discretion whether or not to publish the draft judgment: see the decision of the Court of Appeal in Prudential Assurance Company Limited v McBains Cooper & Ors [2000] EWCA Civ 172; [2000] WLR 2000 , applied by Evans-Lombe J in Liverpool Roman Catholic Archdiocesan Trustees Inc v Goldberg (No. 3) [2001] 1 WLR 2337 .
(b) In his judgment in Prudential Assurance, Brooke LJ confirmed that this discretion arose as a matter of public policy, because without it, "powerful defendants like insurance companies could pick and choose which judgments they were happy to see published and which judgments they were willing to pay money to suppress." He went on to note that the judge at first instance had exercised his discretion in favour of publication because the judgment contained rulings on points of law which were potentially of wide interest, and he made it plain that there were no grounds on which the Court of Appeal could interfere with such an exercise of discretion. Similarly, Evans-Lombe J in Liverpool Trustees chose to make public one aspect of his draft judgment on the grounds that it was "a procedural question of some general importance".
(c) If parties to an appeal compromise their dispute after the hearing or argument, but before the judgment is provided, even in draft, it seems that there may be circumstances in which the Appellate Court might in any event hand down its judgment. At paragraph 31 of his judgment in Prudential Assurance, Brooke LJ said:
'It appeared to be conceded during the course of argument that this court might have a residual discretion to hand down its judgment notwithstanding the fact that the parties had compromised their dispute, if only to correct errors in the reported judgment in the Court below, or to reconcile conflicting lines of authority.'
Similarly, in Grovit v Doctor [1997] 1WLR 640, the Appellate Committee of the House of Lords refused the appellant permission to withdraw its appeal after it had been argued, and proceeded to give judgment on the appeal in any event.
(d) Generally, however, the position appears to be that, if the draft judgment has not been sent to the parties by the time they compromise the action, the court will not publish that draft judgment. Indeed, it is very doubtful whether a first instance court, such as this one, even has the discretion to do otherwise…"
"74. Where a case has been fully argued, whether at first instance or on appeal, and it then settles or is withdrawn or is in some other way disposed of, the court retains the right to decide whether or not to proceed to give judgment. 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 to give judgment despite the matter having been disposed of between the parties. Obvious examples of such cases are where the case raises a point of law of some potential general interest, where an appellate court is differing from the court below, where some wrongdoing or other activity should be exposed, or where the case has attracted some other legitimate public interest.
75. It will also be relevant in most cases to consider how far the preparation of any judgment had got by the time of the request. In the absence of good reason to the contrary, 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 to the case. On the other hand, where the judgment is complete, it could be said (perhaps with rather less force) that it would be a retrospective waste of judicial time and effort if the judgment was not given.
76. The concerns of the parties to the litigation are obviously also relevant and sometimes very important. If, for their own legitimate interests, they do not wish (or one of them does not wish) a judgment to be given, that request should certainly be given weight by the court. (Of course, in some cases, the parties may request a judgment notwithstanding the fact that there is no longer an issue between them).
77. Where there are competing arguments each way, the court will have to weigh up those arguments: in that connection, the reasons for any desire to avoid a judgment will be highly relevant when deciding what weight to give to that desire.
78. In this case, I consider that the argument for handing down our judgments is compelling. First, by the time we were informed that the parties had settled their differences, the main judgment, representing the views of all members of the court, had been prepared by Thomas LJ, in the form of a full draft which has been circulated to Etherton LJ and me. Secondly, a number of the issues dealt with in that judgment are of some general significance. Thirdly, although we are upholding the judgment below, we are doing so on a rather different basis, so it is right to clarify the law for that reason as well. Fourthly, so far as the parties' understandable desire for commercial privacy is concerned, we have not said anything in our judgments which are not already in the public domain, thanks to the judgment below. Finally, so far as the parties' interests otherwise are concerned, no good reason has been advanced for us not giving judgment."
"There is clearly an inconsistency in the various decisions. The clearest decision, in my view, is that of Lord Neuberger in the Barclays Bank case. It is to my mind artificial to have a situation that a judgment can in effect be stopped by the parties by an agreement made before they see the draft judgment but not afterwards. I can see no logical reason for that. It is true to say that the early authorities were not cited to the Court of Appeal in Barclays Bank, but as a matter of policy it seems to me that the reasoning in Lord Neuberger's judgment must plainly be correct in the modern environment. The court must retain a general discretion whether before or after the parties have seen a draft judgment to continue to deliver a judgment where it is appropriate so to do."
The Deputy Master's reasons
"(i) Whether the case involves a point of law of some potential general interest (Barclays Bank v Nylon at [74])
(ii) Whether there are issues of dishonesty or credibility (Barclays Bank v Nylon at [74], F&C Alternative Investments (Holdings) Ltd v Barthelemy [2011] EWHC 1851 (Ch) at [9(iii)])
(iii) How far the preparation of the judgment had got at the time of settlement (Barclays Bank v Nylon at [75]) and the public interest in avoiding further expenditure of court time and resources (F&C Alternative Investments at [7])
(iv) The wishes of the parties (Barclays Bank v Nylon at [76])
(v) Whether it was a condition of settlement that judgment would not be handed down (for example, Liverpool Roman Catholic Archdiocesan Trust v David Goldberg QC [2001] 1 WLR 2337 (Ch) and Beriwala) in the context of the desirability of encouraging settlement and finality in litigation (Prudential Assurance)."
The claimants' submissions
The defendants' submissions
Discussion
Does the jurisdiction to begin the process of handing down a judgment after settlement depend on identifying "exceptional circumstances"?
Did the Deputy Master err in balancing the factors for and against handing down judgment?
If it were necessary to identify exceptional circumstances, was it open to the Deputy Master to hold that such circumstances were present?
Part-publication
Conclusion