Handed down judgments - Judgments in advance of hearing

F&C Alternative Investments (Holdings) Ltd v Barthelemy and another: Chancery Division, Companies Court: 14 July

The parties were involved in litigation relating to the operations of F&C Partners LLP, a limited liability partnership established between the defendants and the claimant in order to carry on a hedge fund business. The trial lasted a long time and involved a significant number of witnesses. It was hard fought litigation with serious allegations being made on each side, both in court and to the relevant regulator, the Financial Services Authority (the FSA).

The draft judgment was issued to the parties who supplied the judge with suggested corrections. The parties subsequently reached a settlement, which was conditional on the judgment not being handed down by the court (see F&C Alternative Investments (Holdings) Ltd v Barthelemy and another [2011] EWHC 1731 (Ch)). The defendants sought an order that the judgment should not be handed down, so as to allow the settlement agreement to take effect.

They submitted that the terms of the settlement were very good from their perspective and expressed concerns as to the extent of their exposure to further litigation with the claimant.

The application would be dismissed.

It was established law that the court had a discretion as to how to proceed, weighing aspects of the public interest along with the wishes and interests of the parties to the proceedings. It was not the function of the practice of providing judgments to the parties in draft before hand down to allow them to have more material available to them to help them settle their dispute (see [1], [8] of the judgment).

In the circumstances, there were four aspects of the public interest which, particularly when taken together, strongly outweighed the private interests of the parties and the countervailing public interest in the case in favour of suppressing the judgment in order to bring the litigation to an end.

First, the judgment contained a detailed review of the conduct of a range of entities and individuals holding approvals from the FSA. It was strongly in the public interest that the FSA should have made available to it a final and fully considered judgment of the High Court making detailed findings of fact, so that it could assess for itself the significance in the relevant regulatory context of any findings and criticisms made by the court.

Secondly, in light of the allegations made to the FSA it was not appropriate to leave the FSA without the full knowledge of the facts and findings of the court in relation to those matters which were contained in the judgment. Thirdly, there were interests of persons other than the parties which had to be taken into account.

Where, as in the instant case, the court had reached firm conclusions in a final form judgment which exonerated witnesses from serious charges publically levelled against them, it was in the public interest that the judgment should be handed down so that the extent to which their evidence had in fact been found to be truthful by the court could be seen.

Fourthly, the judgment addressed a range of legal issues which it was in the public interest to be made the subject of a published judgment for the development of the law and guidance to others. In the circumstances, the defendants' concerns regarding the risk and extent of their exposure to further litigation with the claimant were somewhat overblown.

If there was no settlement, the proceedings would continue to determine the amount of the sum due from the claimant to the defendants. The arguments on those points would not be on anything like the scale of the argument on liability and they should be capable of being dealt with in a reasonable and proportionate manner.

The court would be in a position to protect the defendants' legitimate interests in relation to their claims in an effective way, including by making orders for interim payments where appropriate (see [9], [11]-[14] of the judgment).

The court would proceed to hand to hand down the judgment (see [15] of the judgment).

Prudential Assurance Co Ltd v McBains Cooper (a firm) [2001] 3 All ER 1014 applied; Liverpool Roman Catholic Archdiocesan Trustees Inc v Goldberg (No 2) [2001] 4 All ER 950 applied.

Andrew Ayres (instructed by Norton Rose) for the claimant. Andrew Thompson (instructed by Jeffrey Green Russell) for the defendants.