DR FATIMA JABBAR & ANOR. v AVIVA INSURANCE UK LIMITED & ORS.

After settlement, a court retains a discretion to hand down its judgment. That jurisdiction does not depend on exceptional circumstances, whether settlement occurred before or after circulation of a draft judgment, or whether the court is sitting at first instance or on appeal. The court must balance the public interest in publication against the parties’ reasons for opposing it. Relevant considerations include a point of law of general interest, allegations of wrongdoing, the stage reached in preparing the judgment, judicial resources, the parties’ wishes, and whether settlement made non-publication a condition. A first-instance judgment may have significant public value where it addresses a novel legal issue or records conclusions vindicating a party against serious allegations. Where those considerations justify publication, the court may hand down the judgment in full.

The appellants’ claims against insurers pleaded conspiracy, tortious interference with contract and defamation. The defendants applied to strike out the claims and for summary judgment, while the appellants sought permission to amend. After the hearing and before the Deputy Master handed down judgment, the parties settled and supplied a consent order dismissing the claims and providing for costs. The Deputy Master nevertheless handed down her judgment, having concluded that publication was in the public interest. Permission to appeal was granted against that hand-down decision.

The central issue was whether the court had jurisdiction to hand down a judgment after settlement where the draft had not been circulated, and, if so, whether the Deputy Master had exercised the resulting discretion lawfully.

1. Appeal dismissed. The Deputy Master had jurisdiction to hand down her judgment after settlement, and her decision fell within the ambit of her discretion.
2. The Court of Appeal’s decision in Prudential Assurance v McBains Cooper [2000] EWCA Civ 172; [2000] 1 WLR 2000 did not decide that exceptional circumstances were required where settlement preceded circulation of a draft judgment. Its observations concerning a continuing lis were not the subject of argument and were unnecessary to the disposition.
3. Barclays Bank plc v Nylon Capital LLP [2011] EWCA Civ 826; [2012] Bus LR 542 established that the court retains a discretion to give judgment after a case has been settled. The same balancing exercise applies whether settlement occurs before or after the hand-down process begins, although publication factors may be stronger after circulation of the draft. No threshold of exceptionality is required.
4. The balancing exercise includes the potential general interest of the legal issue, allegations or evidence of wrongdoing, the stage reached in preparing the judgment, judicial resources, the parties’ wishes, and whether non-publication was a condition of settlement.
5. The Deputy Master was entitled to regard the judgment as raising a novel and important issue concerning absolute privilege for statements answering CPR Part 35 requests under a pre-action protocol. She was also entitled to consider the serious allegations of malice and dishonesty, the potential significance of observations about the claimant’s conduct, the defendants’ request for publication, and the absence of any settlement term preventing publication.
6. Publication of only the absolute-privilege ruling was not required. The Deputy Master could publish the judgment in full because the vindication of the defendants and the factual observations formed part of the public-interest justification.

• High Court (Queen's Bench Division): appeal against the Deputy Master’s hand-down decision dismissed. The decision appealed was [2021] EWHC 1729 (QB).