Prudential Assurance Co Ltd v McBains Cooper

Once a judge sends a draft reserved judgment to the parties under the procedure for handed-down judgments, the process of delivering judgment has begun. A later settlement does not entitle the parties to prevent publication. The judge retains an independent discretion to complete or abort that process.

Public interest considerations may justify delivery despite the parties’ wishes, particularly where the judgment contains rulings of wider legal importance or findings whose suppression would be undesirable. Any agreement or common understanding that publication must be withheld is unenforceable on public policy grounds. The parties’ wishes remain relevant, but they are not decisive. A settlement reached before the draft judgment has been disclosed stands on a materially different footing.

The claimants brought a surveyors’ negligence action concerning a structural survey of commercial property. After a five-day trial, the Technology and Construction Court prepared a written judgment containing adverse findings against the defendants and rulings on three disputed questions of damages law.

The draft was supplied confidentially to the parties’ lawyers under the procedure for handed-down judgments. The parties then compromised the action before formal delivery and jointly asked the judge not to publish his judgment. Judge Havery QC nevertheless decided that strong public interest grounds justified formally delivering it.

The defendants appealed with the claimants’ support. The central issue was whether settlement after confidential disclosure of a draft judgment ended the matter or whether the judge retained an independent discretion to hand down the judgment.

1. Appeal dismissed unanimously. Brooke LJ delivered the judgment, with which Robert Walker LJ and Peter Gibson LJ agreed. The judge possessed a discretion to hand down his judgment notwithstanding the parties’ settlement. There was no ground for appellate interference with his exercise of that discretion.

2. The ordinary rule is that parties to private litigation may compromise their dispute and that an unimpeached compromise ends the dispute from which it arose. Courts ordinarily decline to determine an academic question once no live controversy remains. Different considerations may apply in public law, test cases, friendly actions or unresolved costs disputes.

3. The procedure governing handed-down judgments modifies the point at which the relevant judicial process begins. The purpose of supplying the draft is to facilitate corrections and consequential orders, and to allow efficient formal delivery. It is not to supply additional material for settlement negotiations. Although the judgment has not yet taken effect under the Civil Procedure Rules 1998, and the judge may still revise it, delivery has been initiated when the draft is sent confidentially to the parties’ legal advisers.

4. Where a live dispute exists when the draft is sent, a subsequent settlement does not deprive the judge of control over publication. The judge may continue the process by handing down the judgment or abort it at the parties’ request. Public interest may favour completion, especially where the judgment contains rulings of wider importance or serious findings which parties might otherwise pay to suppress.

5. A common understanding that settlement would prevent delivery was unenforceable. Public policy requires the judge to retain an independent discretion. The parties’ wishes are a relevant factor, but they are not overriding.

6. The position differs where settlement occurs before the draft judgments have been disclosed. In that situation the parties have not settled after learning the court’s conclusions, and the delivery process has not been initiated by confidential transmission of the judgment.

The appeal was dismissed, with no order as to costs. Permission to appeal to the House of Lords was refused.

1. Court of Appeal: The appeal was dismissed unanimously. The court upheld Judge Havery QC’s ruling that he retained a discretion to deliver the judgment after settlement and that the discretion had been exercised properly.

2. Technology and Construction Court: Following confidential circulation of his draft judgment and the parties’ subsequent compromise, Judge Havery QC ruled on 5 November 1999 that strong public interest grounds justified formal delivery in open court. No citation is stated.