Heron Bros Ltd v Central Bedfordshire Council (No 2)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Edwards-Stuart,Mr. Justice Edwards-Stuart |
| Judgment Date | 17 April 2015 |
| Neutral Citation | [2015] EWHC 1009 (TCC) |
| Docket Number | Case No: HT-2014-000183 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 17 April 2015 |
[2015] EWHC 1009 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Rolls Building, 7 Rolls Buildings
London EC4A 1NL
Mr. Justice Edwards-Stuart
Case No: HT-2014-000183
Ms. Sarah Hannaford QC (instructed by Quigg Golden Legal Ltd) for the Claimant
Jason Coppel Esq, QC (instructed by Geldards LLP) for the Defendant
Written submissions: 18 March 2015; 19 March 2015; 20 March 2015; 24 March 2015
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
At 10:30 am on 20 March 2015 I handed down judgment following an application by the Defendant to strike out this claim. That judgment had been circulated in draft on 9 March 2015 and each of the parties submitted two further notes in relation to costs and consequential matters prior to the handing down.
Shortly before 2 pm on 20 March 2015, that is to say about three hours after the judgment had been handed down, the court received submissions from the Defendant raising a further point which it said was relevant to the exercise of the court's discretion to cure the irregularity in relation to the service of the claim form. Since, as the Defendant assumed (correctly), no order giving effect to the judgment had been sealed, it invited the court to revisit the judgment and consider afresh the exercise of its discretion in the light of the new point.
The point raised is that the consultants advising the Claimant, Quigg Golden, were not authorised to conduct litigation, which the Defendant submits is exactly what they were doing when issuing and serving the claim form. The Defendant says that, although it had suspected that this was the case, it did not know this for certain until it saw a note by the Claimant's leading counsel dated 18 March 2015.
In a Note dated 24 March 2015 the Claimant responded to the Defendant's application for the judgment to be revisited.
As before, the Claimant was represented by Ms. Sarah Hannaford QC and the Defendant by Mr. Jason Coppel QC.
Whether the court should accede to this application in principle
The Claimant's note of 18 March 2015 was sent to the court by an e-mail timed at 15:45. It must have reached the Defendant's counsel at about the same time, or perhaps a little earlier, because his note in response, also dated 18 March 2015, was received by the court at 16:30 on that day.
The Defendant's note of 18 March 2015 submitted that the Claimant had now acknowledged, for the first time, that Quigg Golden was not authorised to conduct litigation, but was licensed only to instruct the Bar for advice and advocacy services.
The Defendant relied on this to mount a submission in relation to costs to the effect that the Claimant should not be entitled to recover the costs of work which is work that only a solicitor could do. Alternatively, the Defendant contended that since any claim by Quigg Golden against the Claimant in respect of such fees would not be enforceable, the Claimant would not be liable to pay them and so should not be able to recover them from the Defendant.
In this note there was no suggestion that these activities of Quigg Golden were relevant to the issue of discretion in relation to the irregularity in the service of the claim form.
In its post-judgment note of 20 March 2015 the Defendant commented that the Claimant's Supplemental Note of 20 March 2015 refrained from commenting on the "serious matter" of Quigg Golden's unlawful activities in these proceedings, although (said the Defendant) it had implicitly acknowledged the force of the Defendant's allegations by abandoning its claim for Quigg Golden's fees. Thus the Defendant submitted that the Claimant had no answer to the charge laid by the Defendant in relation to Quigg Golden's role. The Defendant concluded its submissions in this note by saying:
"It is the Claimant's Note of today's date which has finally crystallised the matter."
Although that Supplemental Note was in fact dated 19 March 2015, it was received by the court at 09:48 on 20 March 2015. Since counsel for the Defendant referred to it on 20 March as a note "of today's date" I assume that he saw it at about the same time. But even if that was the case, I do not consider that the Defendant was right to submit that the Claimant's Note of 19 March 2015 "crystallised the matter".
As I have already mentioned, the Claimant's Note of 18 March 2015 said in terms that Quigg Golden was not authorised to conduct litigation and that it was not on the record in this case. The first part of this statement was effectively an admission that Quigg Golden was not authorised to issue proceedings, which was substantially the point that the Defendant had been making.
It is plain, therefore, that when the Defendant served its note of 18 March 2015 it was in possession of all the facts on which it now relies. Indeed, it had suspected the true position from the outset. This is not a case where the Defendant has come into possession of new material following the handing down of the judgment.
The authorities
Mr. Coppel referred me to a decision of the Supreme Court, In Re L and Another [2013] 1 WLR 634. In that case the court gave a single judgment, by Lady Hale, with which all members of the court agreed. The case concerned a preliminary judgment in care proceedings in which the judge concluded that the father was the perpetrator of injuries sustained by the child. About two months later, before the order giving effect to the judgment had been sealed, the judge issued a "perfected judgment" in which she said that on further consideration of the evidence she was unable to find to the requisite standard which of the parents had injured the child.
The Supreme Court, reversing the Court of Appeal, after noting that it had long been the law that a judge is entitled to reverse his decision at any time before the order giving effect to that judgment is drawn up and perfected, 1 held that the judge was entitled to change her mind since no order had been sealed. Lady Hale said, at [27]:
"I would agree with Clarke LJ in Stewart v Engel [2000] 1 WLR 2268, 2282, that [the judge's] overriding objective must be to deal with the case justly. A relevant factor must be
whether any party has acted upon the decision to his detriment, especially in the case where it is expected that they may do so before the order is formally drawn up. On the other hand, in In Re Blenheim Leisure (Restaurants) Ltd, Neuberger J gave some examples of cases where it might be just to revisit the earlier decision. But these are only examples. A carefully considered change of mind can be sufficient. Every case is going to depend upon its particular circumstances."
A little later, at [29], Lady Hale made it clear that the application of an exceptionality test was not the correct approach.
The examples given by Neuberger J (as he then was) in In Re Blenheim (Restaurants) Ltd, The Times, 9 November 1999, were:
"… a plain mistake by the court, the parties' failure to draw to the court's attention a plainly relevant fact or point of law and the discovery of new facts after judgment was given."
Whilst I accept that this is not to be treated as a closed list of categories, I consider that they are all examples of situations where either something has obviously gone wrong or relevant material was overlooked through no fault of the parties. In my view they do not sit easily with the situation where a party knows the relevant facts (or, where appropriate, the relevant law) but simply fails to appreciate a potential legal consequence of the matters of which it is aware.
It therefore seems to me that in principle there has to be something more than a post-judgment second thought based on material that was already in play. If it were otherwise, any fresh point that occurred to a party following the handing down of a judgment would entitle the party to require the court to hear further submissions with a view to revisiting the judgment. That would then become the rule rather than the exception. It seems to me that this would accord neither with the interests of finality of judgments nor with the overriding objective to deal with cases justly and at proportionate cost, particularly in the sense of ensuring that parties are on an equal footing, avoiding unnecessary expense and dealing with cases expeditiously. However, at the end of the day the court has a discretion which must be exercised judicially and not capriciously.
Whether the discretion should be exercised in this case
This, of course, is not a case where the court has changed its mind since handing down the judgment or is considering doing so. It is an application by one party that the court should revisit its judgment on the issue of exercise of discretion to remedy the defective service of the claim form.
It seems to me that the court should approach this application in three stages. First, the court should decide whether the application should be entertained at all. Second, if it is appropriate to consider the application, the court should consider whether the point raised by the application is reasonably arguable. If it is not, the application should be dismissed. If it is, then the third stage is for the court to give directions for a short oral hearing to enable the point to be...
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