Case No: A1/2000/3495
Neutral Citation Number: [2001] EWCA Civ 778
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TECHNOLOGY AND CONSTRUCTION COURT  
HIS HONOUR JUDGE RICHARD SEYMOUR QC
Royal Courts of Justice
Strand, London, WC2A 2LL

Wednesday 23rd May 2001

B e f o r e :

LORD JUSTICE ALDOUS
LORD JUSTICE CLARKE 
and 
LORD JUSTICE LAWS

Between:
- - - - - - - - - - - - - - - - - - - - -

THE ROYAL BROMPTON HOSPITAL NATIONAL HEALTH SERVICE TRUST
							(Claimant/Appellant)
and

(1) FREDERICK ALEXANDER HAMMOND
(2) JOHN RICHARD LERCHE
(3) ANTHONY ROBERT HARRIS
(4) ALAN MASSEY
(5) ALFRED GEORGE HEPDEN
(6) SYLVIAN REINHOLD
(7) BRIAN ERNEST TEALE
(8) WATKINS GRAY INTERNATIONAL (UK)
(9) AUSTEN ASSOCIATES (A FIRM)
(10) NORTH, NEIGHBOUR AND NICHOLSON
(11) CLARKE NICHOLLS & MARCELL (A FIRM)
(12) ARLINGTON PROJECT MANAGEMENT LIMITED
(13) PROJECT MANAGEMENT INTERNATIONAL LIMITED
(14) IVOR  GORDON BERRESFORD
(15) KEITH PEGDEN SMITH
(16) AUSTEN ASSOCIATES LIMITED
  							(Defendants/Respondents)

- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -

Mr A. Edwards-Stuart QC and Mr M. Cannon (instructed by Masons for the Appellants)
Mr M. Taverner QC and Mr R. Edwards (instructed by Fishburn Morgan Cole for the eighth, fourteenth and fifteenth defendants “WGI”)
Mr A. Williamson (instructed by Davies Arnold Cooper for the 1st to 7th and 13th defendants/respondents “PMI”)
Mr A. Bartlett QC and Miss J. Davies (instructed by Berrymans Lace Mawer for the ninth and sixteenth defendants/respondents “AA”)
The 10th, 11th and 12th defendants were not present or represented.

- - - - - - - - - - - - - - - - - - - - -

Judgment

1.  This is the judgment of the Court.  
2.  The draft judgments in this case were supplied to the parties on Tuesday 27th March 2001.  They were called draft judgments and the front page contained the usual notice in this form:
“This is a draft of the judgment to be handed down on Thursday 29th March 2001 at 10 a.m. in Court No 66.  It is confidential to Counsel and Solicitors, but the substance may be communicated to clients not more than two hours before the giving of judgment.  The official version of the judgment will be available from the shorthand writers once it has been approved by the judge.

The Court is likely to wish to hand down its judgment in an approved final form.  Counsel should therefore submit any list of typing corrections and other obvious errors in writing to the clerk to Aldous LJ … by 12 noon on Wednesday 28th March 2001 (nil return required) so that changes can be incorporated, if the Court accepts them, in the handed down judgment.”

3.  The parties provided a list of typographical errors and other slips that were subsequently incorporated into the judgments to enable them to be handed down in an approved final form at 10am on Thursday 29th March 2001.  AA and subsequently WGI and PMI also supplied skeleton arguments suggesting that some of the conclusions reached were wrong.  At their request the judgments were not formally handed down on the Thursday morning, but directions were given for skeleton arguments to be provided to assist the Court to decide whether it should reconsider the judgments and, if so, what the result should be.  

4.  There can be no doubt that a judge has jurisdiction to recall, vary or alter his judgment or proposed order up to the time that the order is perfected.  That has been the law for many years as appears from In re: Harrison’s Share Under A Settlement [1953] Ch. 260; In re: Barrell Enterprises [1973] 1 WLR 19; Pittalis v Sherefettin [1986] QB 868; Hillman v Rogers C.A. unreported 30th April 1998.  That jurisdiction remains whether the judgment has been given orally, has been handed to the parties in draft or has been formally handed down.  That jurisdiction of the Court was not altered by the CPR as was made clear in Stewart v Engel [2000] 1 WLR 2268.  

5.  Counsel who appeared before us agreed that the Court had jurisdiction in this case to alter their judgments in any way it thought fit.  However they differed as to the way that we should exercise our discretion.  

6.  The draft judgments in this case were supplied to the parties pursuant to the Practice Statement ([1998] 1 WLR 825).  That supply did not constitute the giving of the judgments as Brooke LJ pointed out in Prudential Assurance Co. Ltd v McBains Cooper [2000] 1 WLR 2000 at 2008:
“It is clear that when a copy of the judgment is sent to the parties’ legal advisers in accordance with this new practice, it is not at that time being given or made within the meaning of CPR r. 40.7 (‘a judgment or order takes effect from the day when it is given or made’): compare Holtby v Hodgson (1889) 24 QBD 103.  It is also clear that the judge is at liberty to alter the terms of his or her judgment (whether to make minor corrections or for any other reason) before handing it down formally in court.  This, however, is nothing new, because it has always been within the powers of a judge to reconsider his or her decision at any time before it is entered and perfected: …  It has always been within a judge’s powers to alter at any time his or her judgment if it has been delivered orally, although not so as to contradict the order made on the judgment once it has been perfected …
It follows under the new practice the process of delivering judgment is initiated when the judge sends a copy of it to the parties’ legal advisers.”

7.  Counsel for the respondents submitted that a court would more readily alter its judgment before it was officially handed down than afterwards.  We disagree.  Of course culpable delay will be a factor against alteration but, absent such delay, we can see no reason why timing should normally be relevant.  In particular there does not appear to us to be any logical reason why a judgment should be more readily altered after delivery to the parties, but before handing down, than during delivery of an oral judgment or immediately after delivery. 

8.  The essential difference between the parties’ submissions concerns the exercise of discretion by this Court to the facts of this particular case.  They agree that the discretion has not been fettered by any statutory enactment and in that sense is unfettered.  However it has to be exercised in accordance with the overriding objectives of the CPR.  That was the conclusion of this Court in Stewart v Engel.  In that case the judge had, after delivering his judgment dismissing the claim, allowed the claimant to amend his statement of claim to plead a claim in conversion.  The Court of Appeal, by a majority, allowed the appeal.  Sir Christopher Slade giving the first judgment said at page 2275 G:
“Since there must be some finality in litigation and litigants cannot be allowed unlimited bites of the cherry, it is not surprising that, according to the authorities, there are stringent limits to the exercise of the discretion conferred on the court by the Barrell jurisdiction.  In that case itself [1973] 1 WLR 19, Russell LJ delivering the judgment of the Court of Appeal said, at pages 23-24:

‘When oral judgments have been given, either in a court of first instance or an appeal, the successful party ought, save in most exceptional circumstances to be able to assume that the judgment is a valid and effective one.’

Russell LJ went on to say at page 24: ‘The cases to which we were referred in which judgment in civil courts have been varied after delivery … were all cases in which some most unusual element was present.’  This principle must apply a fortiori where the judgment is a formal written judgment in final form, handed down after the parties have been given the opportunity to consider it in draft and make representations on the drafts.  The principle recognises that the doing of justice requires justice to both parties in litigation, not merely one.  

At least until the coming into force of the Civil Procedure Rules, the Barrell decision would have been clear authority, binding on this Court, for the proposition that only in exceptional circumstances can it be proper for a judge to exercise his discretion under the relevant jurisdiction to vary a previous order of his once such order had been made.  It may be that now, having regard to the Civil Procedure Rules and what was said as to their effect in the Biguzzi case [1999] 1 WLR 1926, the Barrell decision [1973] 1 WLR 19 is no longer strictly binding authority.  Nevertheless, all the considerations which led the court to decide as it did in that case in my judgment still apply.  They are in my judgment not merely consistent with, but also a proper application of the overriding objective of enabling the court to deal with cases justly as stated in CPR, r. 1.1(1), having regard to all the various factors that fall to be taken into account, by virtue of rule 1(2), in dealing with cases justly.  In the present case, in my judgment, we therefore have to look to see whether in November 1999 there existed exceptional circumstances sufficient to justify the judge in exercising the Barrell jurisdiction.”	
  
9.  Lord Justice Roch agreed with Sir Christopher Slade.  He said at page 2291 G:
“The power of a court to re-open, whether by revocation or by variation its judgment or order must be exercised sparingly in my judgment, if it is to be exercised in accordance with the overriding objective of the Civil Procedure Rules.  The overriding objective of the new code is to enable a court to enable a court to deal with a case justly: see rule 1.1(1).  In dealing with a case justly as in discharging its duty to manage a case, the court must bear in mind expense, the financial position of each party, the desirability of ensuring that the parties are on an equal footing and that cases should be dealt with quickly and efficiently, which includes dealing with as many aspects of the case as the court can on the same occasion: see CPR r.r. 1.1(2)(a)(b)(d) and 1.4(2)(i)(l).”

10.  Lord Justice Roch went on at page 2293 H:
“The plaintiff’s application was made under CPR r. 3.1, that is to say the plaintiff accepted that her application involved the variation or revocation of the order made on 24th September 1999.  It also clearly involved the raising of a new issue.  I would adopt the approach of Neuberger J in that case and apply it to the circumstances of the present case.  There was a full and final judgment given against the plaintiff.  There is no suggestion that the application of 20 October 1999 came about because of the emergence of new evidence or new information.  The court should require the party seeking to reopen the full and final judgment to demonstrate that it is an exceptional case or that there are strong reasons for doing so.  The plaintiff did not begin to do that.  Consequently the application should have been refused.”		

11.  It is an overriding objective of the CPR that cases should be dealt with expeditiously and fairly with an appropriate share of the court’s resources being allotted to the case.  To achieve that, the parties must place before the court the submissions that they wish to rely upon and it would only be in an exceptional case or for strong reasons that they should be allowed to re-open the arguments after the process of delivering judgment has been initiated.  To conclude otherwise would result in a plethora of submissions by dissatisfied litigants, thereby prolonging trials and adding to expense.  However what amounts to an exceptional case or a strong reason for reconsidering a judgment must depend upon the circumstances.  But it must be borne in mind that the practice of handing down judgments was not adopted to encourage or facilitate re-opening of issues that were argued.  As Robert Walker LJ said in Hillman v Rogers:
“Litigation is not an indoor sport and I refrain from any analogy with accepting the referee’s or umpire’s decision as final.  However, there is a real public interest in finality in litigation …”	

12.  In the present case all the parties agreed that paragraph 81 of the draft judgments dealt with a matter that had not been a subject of an appeal.  It was a paragraph inserted by error and therefore the Court decided that it should be deleted from the final form of the judgments.  The other suggested alterations to our judgments were not of that sort.  

13.  AA sought clarification or amendment of the judgments on the AA timing claim.  In a three page skeleton argument, they advanced submissions leading to the conclusion that the decision reached by the Court was not correct and the conclusion should be reversed.  Those submissions were challenged by Brompton who submitted AA’s submissions were wrong and that AA should not be allowed to re-open the argument on the issues.  The submissions of AA, it was submitted, amounted to a challenge to the judgments and the introduction of fresh matters in support.  

14.  AA submitted that the judgment of Aldous LJ on the timing claim was by implication inconsistent with conventional understanding in that it held that the judge had been wrong in law to take into account the contractor’s state of actual progress.  We disagree.  There is nothing in the judgment which states or implies that the contractor’s progress is irrelevant.  The basis of the decision is that the quality and timing claims were intertwined and the judge had failed to take into account the submissions on quality that would have been made, if the quality claim had not been struck out.  Thus a new trial was needed.  No doubt at the new trial the judge will have in mind the contractor’s progress when deciding whether the obligations under the contract had been satisfied.  In our view this submission of AA raises no matter of substance requiring alteration of the judgment.  In any case to allow it to be fully argued would be contrary to the overriding objective.  No special circumstances arise.  

15.  AA also objected to the judgment on the timing claim on the basis that no reasons had been given for not accepting certain submissions that had been made by them.  Even accepting that the judgment does not deal with every submission made by AA, we do not believe that it would be right to allow the matter to be re-argued, as it would have to be, if any alteration was to be made.  The fact that not every submission is dealt with in this judgment cannot amount to special circumstances which would require the court to allow the matter to be re-opened.  To hold to the contrary would be contrary to the overriding objective.    

16.  AA also submitted that the basis of the conclusion reached in paragraph 78 of the judgment of Aldous LJ was irrelevant to the timing claim, and that had led to an error in result.  That was disputed by Brompton.  That submission by AA is an attempt to raise again the submissions made at the hearing, no doubt finely tuned to meet the reasoning in the judgment.  To allow that submission to be re-opened would be contrary to the overriding objectives of the CPR.  They raise nothing exceptional nor do they provide any strong reason for the matter to be re-opened.  

17.  On behalf of WGI, Mr Edwards submitted that the Court had overlooked, or failed to give reasons for rejecting, or perhaps misunderstood, a number of important submissions made on behalf of the defendants.  He went on to outline the submissions that he would make if the Court concluded that it was right that the matter should be re-opened.  Mr Williamson’s submissions on behalf of PMI were somewhat similar.  In essence the conclusions reached by the Court were wrong because they had failed to understand and adopt his submissions made at the hearing.  

18.  Mr Edwards-Stuart did not accept that there was any error and submitted that both PMI and WGI were just seeking to re-argue the case that they had put before the Court.  That, he submitted, should not be allowed.  

19.  To allow WGI and PMI to re-argue the matters that had been considered by this Court at the hearing would be contrary to the overriding objectives to the CPR.  There are no special circumstances which arise in this case.  If such submissions were to be entertained, we can see no end to this appeal as even a revised judgment would, if past experience is a guide, lead to another application to reconsider the revised judgment.  In any case it must be remembered that the conclusion of the Court was that the cases against WGI and PMI should not be struck out, but that they should be determined at trial.  To increase the costs by a further hearing could not be justified.  

ORDER: Applications refused; the defendants to pay the costs of the Claimant’s in equal shares of and caused by the hearings since 29th March; to be the subject of a detailed assessment.

(Order does not form part of approved Judgment)