APPENDIX 8
Note by Speaker's Counsel
CONFIDENTIALITY OF CIVIL CLAIM SETTLEMENTS
MADE BY THE POLICE
1. I am asked to advise the Committee about
the status of "confidentiality clauses" included in
court settlements of civil proceedings claiming damages from police
authorities and whether conflicting obligations might be involved
in questioning a witness about the confidential matters.
2. There is a fundamental distinction between:
(a) a judgment or order of a court, and
(b) a settlement (or compromise) of an action
between parties on terms;
but they interact.
3. The first is a public judicial act and
the judgment or order is a public document. Generally speaking,
a judgment determines the rights and obligations of the parties
and if the relief given includes or consists of an order of the
court addressed to some person or persons breach of the order
may entail the sanction of contempt for breach of the order.
4. The second is essentially a contract
between the parties and, if one of the terms of the settlement
is that the damages agreed to be paid shall not be disclosed to
others, that term creates a contractual obligation of confidence.
Breach of it will carry the ordinary remedies available for breach
of a contract (which could include an injunction).
5. The terms of a settlement may be incorporated
in a judgment or order and the judgment or order may (indeed,
if it is expressly consented to, must) be marked "By consent".
A judgment or order by consent is binding on the parties and,
under Order 42 rule 5A of the Rules of the Supreme Court is enforceable
(when entered) like any other judgment thus creating a judgment
debt for the agreed amount of damages. But—and this is important—the
terms of the settlement have, by being incorporated in the judgment,
passed into the public domain.
6. Hence if the terms of the consent judgment
or order include a "confidentiality clause", disclosing
the information covered by the obligation will not be a breach
of an order of a court but merely a breach of contract in the
sort of case the Committee is concerned with; and a technical
breach at that (see 8 below). (In other sorts of case where the
consent order includes an injunction—in which case the judge
must initial the order—there is a true order of the court
carrying with it an obligation to the court to obey it).
7. Exceptionally a judgment (or order) by
consent may require the approval of a judge before it is an effective,
enforceable judgment. Thus, if damages are agreed to be paid in
respect of a fatal accident and a dependent is a child a judge's
approval is required. But no "approval" of a settlement
is generally required; nor does the fact that the terms of the
settlement are embodied in a judgment have any other legal effect
than to create an enforceable judgment debt for the agreed sum
of damages. When it is said in the Manchester Police case that
the settlement (of a claim for civil damages) was "submitted
to and approved by the court" this can mean no more
than that a judgment by consent was entered which incorporated
the terms of the settlement.
8. What follows from the above is that;
(a) incorporating the terms of the settlement
in a judgment means that:
(i) all the terms become public;
(ii) the disclosure of the amount of damages
would only be at most a technical breach of the contractual obligation
of confidence because no damage could flow from the disclosure
of what is already in the public domain; but
(b) the incorporation gives rise to no obligation
to the court which can be breached by the disclosure (unless
there is a specific order—virtually inconceivable in this
sort of case).
9. Accordingly, since no obligation of confidence
is owed to the court, the situation of conflicting obligations
(one to the court, not to disclose; and one to the Committee,
to disclose by answering its questions) does not arise. It is,
of course, correct that a witness must, regardless of other obligations
(except perhaps statutory ones) answer questions asked by a Parliamentary
Committee.
Stephen Mason
Counsel to the Speaker
July 1998
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