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Johnson v S of S for Transport and MIB: Confidentiality of settlement sum for a protected party set out in a Tomlin order approved by the court


26th April 2021

The High Court has ruled at an approval hearing that, where an offer is made by a non-party, subsequently joined to the proceedings as an Interested Party, to settle the claim of a protected party claimant for damages for personal injury against a defendant on condition that the sum agreed to be paid to the claimant by the Interested Party should be kept confidential and not disclosed to the defendant or the public, in the particular circumstances of this case, and without setting a precedent that might routinely be sought in other cases, it was necessary to approve and make an order to ensure that justice was done and to ensure the confidentiality of the settlement was achieved.

 

The claimant and the defendant hotly disputed whether the claimant lacked capacity to litigate; this was pivotal to the defendant’s limitation defence in the event of a trial. Applying Coles v Perfect, Fordham J. held that the court could give approval to the settlement of a claim without having to resolve that issue and proceed on the assumption that the claimant lacked litigation capacity and was a protected party. The court also approved the basis of the settlement, including the confidential sum, as being in the best interests of the claimant.  

 

Paying tribute to the “laser effectiveness” of the cooperation of all the parties in providing a Note for the Court setting out submissions that a limited derogation from the open justice principle to was necessary to achieve justice in the case, the judge held that it was necessary to make such an order to ensure that justice was done and to ensure the confidentiality of the settlement was achieved because the Court can be satisfied that the approval function – which involves confidential material being considered – is not, nor is public confidence in the integrity of it, in any way undermined; (2) the open justice principle is not, per se,  offended by parties settling claims in Tomlin order form with a confidential schedule; (3) in the  case of a claimant with undoubted litigation capacity there would thus be no principled objection to a Tomlin order with a confidential schedule; (4) the MIB’s offer has been made ex gratia, emanating from a third party, and expressly on a confidential basis (for reasons into which I am satisfied I do not need to go); (5) it would stand to deprive the Claimant of the opportunity of settling the claim if no derogation were permitted; (6) the  derogation is limited to the sum to be paid; (7) there is a balance to be struck engaging not only the open justice principle and Article 10 freedom of expression, but also the Claimant’s Article 8, A1P1 and Article 14 rights; (8) that balance comes down decisively in favour of the claimant  being able to accept the settlement on the terms on which it has been offered. However, the judge made it clear that it did not follow from his decision that it would be open routinely to defendants (for example, health authorities in clinical negligence cases) to make settlement offers conditional on confidentiality which would then undermine the public interest in the reporting of approved settlements. His decision was limited to the particular facts and circumstances of the present case.

 

Winston Hunter QC appeared on behalf of the Claimant, instructed by Potter Rees Dolan.

 

The judgment can be found here.

 

 

 



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