Ali & Ors v Abbeyfield VE Ltd

A court retains discretion to hand down judgment after the parties have reached a settlement, even where they jointly request that judgment not be given. The parties’ wishes are relevant but are not overriding. The court must balance the interests of settlement and confidentiality against the public interest in publication, including the significance of findings of fraud or negligence, the interests of affected third parties, and the legal or regulatory importance of the judgment. A draft judgment is supplied to facilitate consequential orders and formal delivery, not to provide material for settlement negotiations. The possibility of settlement after judgment, and the fact that disputed issues are largely factual, may reduce the weight of concerns about costs or an appeal.

The claimants brought proceedings alleging that Abbeyfield VE Ltd had induced them to enter joint venture agreements to establish and operate Vision Express stores by making fraudulent or negligent misrepresentations. Following a two-week trial, the judge prepared a draft judgment finding all 12 alleged misrepresentations proved and fraudulent, and awarding damages, although not in the full amount claimed.

The parties then reached a conditional global settlement. They asked the court not to hand down judgment because publication might cause commercial and reputational harm, and might lead to further disputes about costs or an appeal. The central issue was whether the court should exercise its discretion to withhold judgment notwithstanding the settlement.

1. Disposition. The court proceeded to hand down judgment despite the parties’ joint request that it should not do so.
2. The judge applied the principles in Prudential Assurance Company v McBains Cooper [2000] 1 WLR 2001. The purpose of circulating a confidential draft judgment is to allow the parties to consider consequential orders and abbreviate formal delivery. It is not to give them additional material to assist settlement. The parties’ wishes are one factor in the exercise of the discretion, but are not overriding.
3. The court also applied the approach in F&C Alternative Investments v Barthelemy [2011] EWHC 1851 (Ch), [2012] BLR, and considered the guidance in Barclays Bank v Nylon Capital [2011] EWCA Civ 826. Relevant considerations included the public interest in serious findings being crystallised in a judgment, the interests of persons other than the parties, the general legal or regulatory significance of the issues, and the strength of the parties’ commercial and procedural objections.
4. Publication was appropriate because the judgment contained serious findings of fraudulent misrepresentation which might be relevant to others in comparable positions. The dispute had been litigated over several years and the parties could have sought a short postponement while settlement discussions took place. The draft judgment had effectively been used as an aid to settlement, contrary to its proper purpose.
5. Concerns about costs, appeal and collateral commercial damage did not outweigh publication. Costs could be dealt with separately, any appeal would principally concern factual and credibility findings, and the findings related to historic conduct by one former employee in recruiting the claimants rather than to VE’s products or the management of its stores.

Not stated in the judgment.