Previous case law
Rejection of application

The recent decision in F&C Alternative Investments (Holdings) Ltd v Barthelemy(1) is a sharp reminder that the courts perform a public service function which is not necessarily subservient to the mutual wishes of the parties in commercial litigation.


The application at issue arose from proceedings between various F&C group companies and two principals behind a fund of hedge funds which had been established as a limited partnership in conjunction with F&C. The dispute was rancorous, with F&C making allegations of criminal conduct by the defendants to the Financial Services Authority (FSA) and the defendants making serious allegations of conspiracy and dishonesty within F&C.

The decision related to an application that was made by the defendants - and supported by the claimants - long after the trial of the underlying matter. The judge had circulated his draft judgment to the parties on a confidential basis. This is standard practice in the English courts: it gives the parties an opportunity to correct factual inaccuracies and typographical errors, and to seek to agree on the wording of any necessary consequential orders. The intention was that the judgment would then be handed down in open court and thereby made public (which was what happened).

The judgment was not wholly complimentary about many of the parties involved in the litigation. The parties, having seen the draft judgment, reached an agreement to settle which was conditional on the judgment not being handed down and thus remaining confidential. The application at issue asked the judge to agree not to hand down the judgment in order that the settlement could take effect in accordance with the parties' wishes.

Previous case law

The history of such applications is mixed. In Prudential the judgment was handed down despite the parties' wishes. In Liverpool Roman Catholic Archdiocesan Trust Trustees v David Goldberg QC(4) the judge acceded to a similar request on being told that a settlement had been reached which was conditional on the judgment not being handed down; however, the judge excepted (and published) a section from the judgment which dealt with a matter that was deemed to be of public importance. In Durabella Limited v J Jarvis & Sons Limited(5) the judge also acceded in part, publishing certain sections of his judgment, but withholding others. In the most recent (non-)judgment, in Renaissance Capital Ltd v ENRC Africa Holdings Ltd,(6) the judge acceded to the application in full, finding that there were no novel or contentious issues of law involved and that no findings of fact had a wider public interest that weighed in favour of publication. Accordingly, it was held that the parties' private commercial interests outweighed the residual public interest presumption in favour of publication.

Rejection of application

The judge rejected the application. The Court of Appeal established in Prudential Assurance Company Ltd v McBains Cooper(2) that a judge retains discretion to hand down a judgment which has been circulated in draft before the parties have reached a settlement. In that case it was essentially held that the circulation of the judgment in draft and in confidence to the parties - which was then a relatively new practice - is part of the process of delivering judgment. Before circulation of the judgment in draft, it is:

"elementary that parties to private litigation are at liberty to resolve their differences by a compromise, and that an unimpeached compromise represents the end of the dispute or disputes from which it arose."(3)

After the process of delivering judgment has been initiated by circulation of the draft, the parties no longer retain such control and are in the hands of the court. The parties in F&C recognised that risk in making their settlement conditional on the court agreeing not to hand down judgment.

In F&C the judge refused to withhold publication of the draft judgment. He gave four reasons for doing so:

  • The judgment involved a careful analysis of the conduct of regulated companies and individuals, which was the subject of a number of criticisms. There was a public interest in the criticisms being aired in public in order to assist the FSA in its regulatory function.
  • The judgment involved a detailed review of conduct which had been the subject of complaints to the FSA. There was a clear public interest in the FSA being made aware of the courts' findings and analysis. The parties had attempted to circumvent the issue by agreeing on a joint statement, which was to be presented to the FSA if the settlement went through; however, the judge was not satisfied that this gave a full and clear picture of his findings of fact.
  • The defendants, in pursuing allegations of conspiracy, had attacked the credibility and honesty of F&C's witnesses. The judge had rejected the allegations of conspiracy and found "many of the F&C witnesses… to be completely honest and credible witnesses". The other witnesses who had been criticised in the judgment had been exonerated of more serious accusations levelled against them at trial. As the allegations had been made in the public arena of trial, it was fair and just to make public the judgment clearing the witnesses of those allegations.
  • The judgment dealt with several points of legal significance, which meant that it would be a valuable addition to case law.

The judge held that the four points "strongly outweigh[ed] the private interests of the parties… in favour of suppressing the judgment in order to bring the litigation to an end".


Parties in substantial commercial litigation which has failed to settle before trial still have time to assess the position in the wake of the trial while judgment is being drafted (or waiting to be drafted). This case underlines the imperative to do so where a judgment may present a sufficiently great reputational risk to justify settlement. Once the court passes its conclusions to the parties, control of the reputational consequences passes to the court.

For further information on this topic please contact Jake Hardy at Reynolds Porter Chamberlain LLP by telephone (+44 20 3060 6000), fax (+44 20 3060 7000) or email ([email protected]).


(1) [2011] EWHC 1851 (Ch).

(2) [2000] 1 WLR 2000.

(3) Lord Justice Brooke in Prudential Assurance Company Ltd v McBains Cooper.

(4) [2001] EWHC 396 (Ch).

(5) 83 Con LR 145.

(6) Unreported.