Toby v Allianz Global Risks Us Insurance Company

• Jurisdiction: Cayman Islands
• Judge: (Mangatal, J.)
• Judgment Date: 30 August 2018
• Court: Grand Court (Cayman Islands)
• Date: 30 August 2018

TOBY

and

ALLIANZ GLOBAL RISKS US INSURANCE COMPANY

(Mangatal, J.)

Grand Court, Financial Services Division (Cayman Islands)

Civil Procedure — judgments and orders — publication of judgment — court refused application to withhold publication where, after receiving draft, parties in advanced stages of settlement — public interest in publication outweighs parties’ interests

Held, refusing the application:

The court would formally hand down and publish the judgment. While the wishes of the parties were to be taken into account, they were not an overriding factor. The stage at which an application was made for the court not to hand down or publish a judgment was important. In the present case, after four and a half years of not settling the matter, it was only after the draft judgment was sent and after the parties’ attorneys hadprovided their input into minor corrections to the draft that the parties informed the court that they were at an advanced stage of settlement. A draft judgment was not a settlement tool, or a dress rehearsal. Its purpose was not simply to provide more materials to the parties on which they could decide to settle their dispute. There was plainly a public interest in many of the issues in the case. The determination of the issues raised would be of interest to the profession, the civil aviation industry and the insurance industry. It would plainly be of value if the judgment were to be a matter of public record. Additionally, it was unlikely that such a unique set of circumstances would present themselves in the future. If the judgment were not delivered, it would be a wasted opportunity for the Financial Services Division to provide guidance on a wide range of difficult topics. The parties had not indicated in detail why publication of the judgment would prevent them from settling issues of costs, compromising an appeal or reaching compromise or settlement generally. Nevertheless, the court took into account their expressed desire to settle the dispute on terms favourable to them, and that there was also a public interest in the saving of costs and further court time and resources to bring the dispute to an end. The parties had not, however, advanced strong reasons for the court not to give judgment. It would also not be good practice to encourage applications to prevent publication of judgments, which could result in a waste of scarce judicial resources (paras. 23–36).

Cases cited:

(1)Barclays Bank plc v. Nylon Capital LLP, [2011] EWCA Civ 826; [2012] 1 All E.R. (Comm) 912; [2011] 2 Lloyd’s Rep. 347; [2011] BLR 614; [2012] Bus. L.R. 542, applied.

(2)F&C Alternative Invs. (Holdings) Ltd. v. Barthelemy, [2011] EWHC 1851 (Ch); [2012] Bus. L.R. 884, considered.

(3)Practice Statement (Supreme Court: Judgments), [1998] 1 W.L.R. 825; [1998] 2 All E.R. 667; [1998] 2 Cr. App. R. 144; [1998] 1 FLR 1102; [1998] 2 F.C.R. 1, followed.

(4)Prudential Assur. Co. Ltd. v. McBains Cooper, [2000] 1 W.L.R. 2000; [2001] 3 All E.R. 1014; [2001] C.P. Rep. 19; [2000] C.P.L.R. 475; [2000] All E.R. (D) 715, followed.

The parties applied for a draft judgment not to be handed down or published.

The matter involved a complex civil aviation insurance claim. The trial took place over 10 days and involved a significant number of witnesses. Extensive work was done before and during the trial, and in completing the draft judgment. The draft judgment was sent to the parties’ attorneys, who provided an agreed list of suggested changes. The court was then informed by the plaintiff’s attorneys that the parties had reached an advanced stage in settlement negotiations and that the principal terms of settlement had been agreed. In those circumstances, the plaintiff applied for the court to refrain from formally handing down the judgment. It was said that publication might hamper the parties’ ability to compromise. The defendant supported the application.

It was submitted that the court retained a discretion whether to hand down a judgment in public, notwithstanding that parties settled a case after receiving a draft judgment. In the present case, publication was not necessary to clarify a novel point of law, to expose a conflicting position taken by two appellate courts, to avoid perpetuation of an error by a court of first instance, or to expose or exonerate wrongdoing. The wishes of the parties for the judgment not to be made public, and the interests of encouraging settlement in future matters, therefore outweighed the public interest in publishing the judgment.

1 MANGATAL, J.: This is my ruling in respect of an application by the plaintiff, which is supported by the defendant. The parties seek to have the finalized judgment in this matter not be handed down or published. The judgment was circulated to the parties in draft on August 1st, 2018.

2 It is useful to set out a bit of background to this application.

Background

3 The writ and statement of claim were filed in 2013.

4 This matter involved a complex civil aviation insurance claim. Thetrial took place over 10 days in September/October 2017 and involved a significant number of witnesses, including witnesses from Brazil. Expert evidence was given as to the law of Brazil and as to civil aviation insurance practice. The claim relates to a Cessna C680 aircraft. The aircraft was leased by the plaintiff, Toby, and insured by the defendant Allianz Global Risks US Insurance Company, and was subsequently confiscated by the Brazilian authorities.

5 Extensive work was done before, during and at the trial, and in completing the draft judgment. The draft judgment, which is over 200 pages long, was sent out to the parties’ attorneys on August 1st, 2018. The draft was sent out pursuant to Practice Direction No. 1 of 2004. It contains an index, as well as a summary of my findings of fact and law.

6 As the judgment was relatively long, and my personal assistant and I were both going to be on leave for two weeks, the parties were given longer than 72 hours (the period discussed in the Practice Direction—unless the judge otherwise directs). They were given until 5 p.m. on Thursday, August 16th, 2018 to review the unapproved draft judgment and provide any comments in respect of any factual and/or typographical errors.

7 The parties requested additional time in order to provide an agreed list of suggested changes, and they helpfully also provided a marked-up version of the draft judgment, and a list of seven questions regarding wording in the...