Katie Johnson v Secretary of State for Transport

When approving a settlement for a party whose litigation capacity is disputed, the court may proceed on the premise that the party lacks capacity without determining that issue. The court must have sufficient information and assistance to assess whether the settlement is in the party’s best interests.

A confidential settlement figure may justify a limited derogation from open justice where confidentiality is necessary to secure justice on the particular facts. Such approval does not establish that confidentiality should routinely be permitted for approved settlements.

The claimant, who had suffered severe injuries as a child in an accident involving an uninsured motorcyclist, had previously recovered part of her loss from the Motor Insurers’ Bureau. She later brought a Francovich claim against the Secretary of State for Transport for the alleged shortfall.

The Motor Insurers’ Bureau offered an ex gratia settlement of the second claim, with the settlement figure kept confidential. The claimant’s litigation capacity was disputed, and approval was sought under CPR 21.10, or alternatively under the court’s inherent jurisdiction. The court had to decide whether to approve the settlement and whether confidentiality was justified.

1. Settlement approval. The settlement was approved as being in the claimant’s best interests. The Motor Insurers’ Bureau was joined as an interested party, the proceedings were stayed generally, and consequential costs and enforcement orders were made.
2. Disputed litigation capacity. It was neither necessary nor appropriate to determine whether the claimant lacked litigation capacity. The court could proceed on the premise that she was a protected party and assess the settlement on that basis. This avoided the risk that approval required by CPR 21.10 would later prove to have been absent: Coles v Perfect [2013] EWHC 1955 (QB); Dunhill v Burgin [2014] UKSC 18.
3. Best interests. The court asked whether it had the information and assistance needed to assess the settlement and, if so, whether the settlement was in the claimant’s best interests. Having considered the confidential advice and papers, it answered both questions affirmatively.
4. Confidentiality and open justice. Keeping the settlement sum confidential was a limited derogation from open justice, but was necessary to ensure justice in the particular circumstances. The court relied on the fact that the offer was ex gratia, made by a third party expressly on a confidential basis, and that refusal would deprive the claimant of the opportunity to settle. The balance engaged open justice, Article 10 and the claimant’s Article 8, A1P1 and Article 14 rights. A confidential schedule in a Tomlin order was not inherently objectionable: Zenith v Coury [2020] EWHC 774 (QB). The decision was fact-specific and did not support routine confidentiality for approved settlements.
5. Liberty was granted to any person to apply regarding confidentiality of the schedule.