Gurney Consulting Engineers (a firm) v Gleeds Health & Safety Ltd. & Anor (No. 2)

Where a reserved judgment has been sent to the parties before settlement, the court retains a discretion whether to publish it. That discretion exists to protect the administration of justice and the public interest in authoritative decisions, and may justify publication of points of law of wider importance.

Where the parties settle before a draft judgment is provided, a first-instance court will generally have no discretion to publish it. Parties and their legal advisers must also inform the court immediately of meaningful settlement discussions which may make delivery of judgment unnecessary. This duty applies equally when judgment is reserved at first instance and on appeal.

The action had been tried over nine days. After final submissions, the judge prepared a 298-paragraph draft judgment. Before it was sent to the parties, the parties settled and submitted a consent order providing for dismissal of the claims.

The parties sought confirmation that the draft judgment would not be published. A further issue arose because meaningful settlement negotiations had taken place for some weeks without the court being informed. The court therefore considered the publication of reserved judgments after settlement and the parties’ duty to notify the court of settlement developments.

1. Publication of draft judgment. The action had settled before the draft judgment was provided to the parties. Applying the principles derived from Prudential Assurance Company Ltd v McBains Cooper [2000] EWCA Civ 172, and applied in Liverpool Roman Catholic Archdiocesan Trustees Inc v Goldberg (No 3) [2001] 1 WLR 2337, the judge held that the court should not publish the draft. The compromise meant that the judge was no longer seized of a dispute requiring judgment.
2. The position differed from cases where the draft judgment had already been supplied before settlement. Although an appellate court might retain a residual power to hand down judgment after settlement in exceptional circumstances, such as to correct a reported error or reconcile conflicting authorities, that consideration did not apply here. Even if a residual discretion existed, the parties’ joint opposition to publication would have led the court to exercise it against publication.
3. Duty to notify the court. The parties and their professional advisers must inform the court immediately when they become aware of any development which may make delivery of a reserved judgment unnecessary. The foundation of the duty is the proper and efficient deployment of judicial resources and the avoidance of detriment to other court users. The duty applies to reserved judgments in both appellate and first-instance proceedings.
4. The parties had failed to notify the court when meaningful negotiations resumed. Their failure caused wasted judicial time and affected other users of the Technology and Construction Court. Their apologies and assurance that the omission was inadvertent were accepted, and the judge treated the matter as concluded.

First-instance decision. The judgment records that the substantive action had been settled after trial and that the court declined to publish its draft judgment.