Court can give judgment despite settlement

A recent Court of Appeal decision clarifies that the court has the power to hand down judgment in a case that has been fully argued, even if the parties have settled their dispute and asked that judgment not be given: Barclays Bank Plc v Nylon Capital LLP [2011] EWCA Civ 826.

This power is well recognised in cases where a dispute is settled after a draft judgment has been sent to the parties, but previous authorities suggested that the court would not hand down judgment where settlement is reached before the draft judgment has been circulated (see Prudential Assurance Company Limited v McBains Cooper [2000] EWCA Civ 172). The present case illustrates that there is no such distinction.

The judgment highlights a number of factors that the court will consider when deciding whether to hand down judgment where the case has been settled. Where the case raises a point which it is in the public interest to ventilate in a judgment, this will be a "powerful reason" for giving judgment. Examples include where the case raises a point of law of general interest, where an appeal court differs from the court below, or where some wrongdoing should be exposed. Other relevant factors include the extent to which any judgment has been prepared by the time of the request (since it would be a "highly questionable use of judicial time" to prepare judgment on an issue which is no longer live between the parties) and the parties' reasons for any desire to avoid a judgment.

As a practical matter, this decision shows that if parties wish to avoid publication of a judgment, particularly in a case that may raise issues of public interest, it is best to reach a settlement as quickly as possible after the conclusion of the hearing (if not before). Parties should also remember that they have a duty to inform the court immediately if "meaningful settlement discussions" take place after judgment has been reserved.