Sarah Lynette Webb v Lewis Silkin Llp

A claimant who settles a privacy or breach of confidence claim by accepting payment into court may generally expect permission to make a statement in open court. The principles developed in defamation cases apply with equal force. The statement must be fair, proportionate and not materially prejudicial to third parties, but it need not present a balanced account of both parties’ cases.

The court should adopt a relatively non-interventionist approach. It should not resolve disputed issues which the settlement has left undecided. It should intervene only where the proposed statement misrepresents the claimant’s case, the defendant’s case or the settlement, or creates real and substantial unfairness.

The claimant had brought a privacy action after solicitors acting for her former firm accessed her former work email account, which contained personal and confidential communications. The action was settled following a payment into court. The claimant applied under the Practice Direction to Part 53 for permission to read a unilateral statement in open court.

The defendant opposed parts of the draft, contending that the procedure was inappropriate because the private information had not been widely published and that the draft did not fairly describe the defendant’s position. The issues were whether the defamation authorities governing statements in open court applied to privacy claims and whether the proposed statement was fair and proportionate.

1. Open hearing. The principle of open justice required the application to continue in public. The existence of confidential arbitral material did not make a private hearing strictly necessary. Any genuinely confidential matter could be dealt with by a renewed application if required.
2. Availability of a statement in open court. The procedure under the Practice Direction to Part 53 applies to privacy and breach of confidence claims as it does to defamation claims. A claimant who accepts payment into court may normally expect permission to make a statement describing the nature and effect of the claim and the claimant’s perception of the settlement.
3. Limits on the court’s intervention. The statement must be fair and proportionate. It must not misrepresent either party’s case or the nature of the settlement, and the interests of third parties must be considered. The court should not attempt to resolve disputed issues which would have required a trial. A unilateral statement is the claimant’s statement, not a substitute for a bilateral or neutral account.
4. The extent to which the private information was disseminated was not, by itself, a reason to refuse permission. Privacy vindication differs from reputational vindication, but the distinction did not justify excluding the procedure altogether.
5. The claimant’s draft was approved subject to changing the former firm’s name to an anonymised reference and replacing the assertion that hundreds of personal emails had been “reviewed and read” with the more supportable statement that they had been “accessed”. The court declined to require a fuller explanation of the defendant’s proposed defences or to remove statements expressing the claimant’s perception that her rights had been flagrantly breached.

Not an appeal. The judgment itself records that the underlying action had been settled following a payment into court, leaving only the application concerning the statement in open court.