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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Malmesbury & Ors v Strutt & Parker (A Partnership) [2007] EWHC 2199 (QB) (09 October 2007) URL: https://www.bailii.org/ew/cases/EWHC/QB/2007/2199.html Cite as: [2007] EWHC 2199 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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(1) Seventh Earl of Malmesbury (2) William John Maltby (3) Kathleen Hobbs (4) Wilsco 283 Limited |
Claimants |
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- and - |
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Defendants |
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Timothy Lamb QC & John Gallagher (instructed by Williams Holden Cooklin
Gibbons LLP) for the Defendant
Hearing date: 20 September 2007
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Crown Copyright ©
Mr Justice Jack :
"In the negotiation BIA would have sought to concede as low a percentage of turnover as possible. While neither side could afford to allow the negotiation to fail, BIA was in the stronger position and this would have been reflected in the outcome. I have concluded that the figure which the parties are most likely to have agreed upon in the circumstances is 10 per cent. If Mr Ashworth had achieved that, he would have fulfilled his duty to the Estate."
Parker's written argument provided for the trial and exchanged shortly before. It was there submitted that the correct measure was the difference in the capital value of the leases, negligent and non-negligent, actual and hypothetical, at the breach dates. There was no evidence from either party as to capital values. In my judgment I held that the capital value at breach date basis was correct. The draft judgment was sent by e-mail to counsel on 30 April 2007. Because of the request that I should leave over the quantum of damage but nonetheless decide some issues relating to damages, by an e-mail of 2 May counsel were asked to satisfy themselves that the judgment dealt with all matters which it was intended should be dealt with at that stage, also that it accurately recorded the submissions made and on occasion not made. The claimants responded to this on 9 May raising various matters and in consequence I added paragraphs to the judgment dealing with two further topics - paragraphs 200 and 201. The judgment was handed down on 11 May. Immediately following the handing down I heard submissions as to appeals, the further conduct of the action and costs. I was asked by both parties to postpone all matters relating to appeals until after the conclusion of the damages hearing. I made various orders. During the course of submissions I appreciated that in section N of the judgment dealing with various matters relevant to damages I had failed to state that my conclusions were relevant only to the basis of damages for which the claimants had contended, and not to the breach date basis for which Strutt
& Parker contended. Having informed counsel of my intention, and without objection, I subsequently added a new paragraph to the judgment, 201A, to deal with this. I decided that the claimants' application for an interim payment should be heard on 22 May. On 15 May I handed down a ruling that I would assess damages on both bases so the position would be covered in the event of a successful appeal on the measure of damage. On 22 May I adjourned the hearing of the interim payment application by reason of the service of further evidence on behalf of the claimants. I subsequently decided that due to problems with my own availability it should be heard by another judge. It was heard by Mr Justice Langstaff in June. I do not know the outcome. At the conclusion of the hearing on 22 May I was asked by Mr Speaight to grant the claimants permission to appeal on three grounds: the measure of damages, the finding of 10 per cent as the likely turnover rent, and the status of the Airport road. I granted permission on the first, but refused it on the second and third.
"1. There be a trial on the outstanding aspects of quantum needed to assess the damages to be paid by the First Defendants to the Claimants, such trial to be reserved to Mr Justice Jack."
bar takes the form of an order giving effect to the judgment, even if the technical reason for that bar is that the judge is functus officio.
In in re Barrell Enterprises [1973] 1 WLR 19 the Court of Appeal refused to re-open an appeal even though the order of the court had not been drawn up. In giving the judgment of the court Russell LJ stated at page 23:
"Now that the matter has been looked into we are of the opinion that there were in this case no grounds on which the argument on the appeal could properly be reopened. When oral judgments have been given, either in a court of first instance or on appeal, the successful party ought save in most exceptional circumstances to be able to assume that the judgment is a valid and effective one. The cases to which we were referred in which judgments in civil courts have been varied after delivery (apart from the correction of slips) were all cases in which some most unusual element was present."
"In the present case, the judge recalled the order the day after he had made it. It is not suggested that the landlords in any way, in proper reliance on the order, acted to their detriment. We are dealing with a case where the judge, practically as soon as he gave the judgment, decided that he was wrong. As a matter of the sensible administration of justice and fairness between parties, it seems to me proper in the circumstances that the judge should be at liberty to recall his order. The position can properly be called exceptional."
At page 882 Dillon LJ stated:
"It is indeed exceptional for a judge who has pronounced an order in court to be completely satisfied, before the order has been drawn up, registered or perfected, that the order was wrong. That happened, however, in the present case, and accordingly the judge was entitled, taking the view he did, to recall his earlier order."
"42. Of course, the reference to exceptional circumstances is not a statutory definition and the ultimate interests involved, whether before or after the introduction of the CPR, are the interests of justice. On the one hand the court is concerned with finality, and the very proper consideration that too wide a discretion would open the floodgates to attempts to ask the court to reconsider its decision in a large number and variety of cases, rather than to take the course of appealing to a higher court. On the other hand, there is a proper concern that the courts should not be held by their own decisions in a straitjacket pending the formality of the drawing up of an order. .....
43. Provided the formula of 'exceptional circumstances' is not turned into a straitjacket of its own, and the interests of justice as laid down in the overriding principle are held closely to mind, I do not think that the proper balance will be lost. Clearly, it cannot be in every case that a litigant should be entitled to ask the judge to think again. Therefore, on one ground or another, the case must raise considerations, in the interests of justice, which are out of the ordinary, extraordinary, or exceptional. An exceptional case does not have to be uniquely special. 'Strong reasons' is perhaps an acceptable alternative to 'exceptional circumstances'. It will necessarily be in an exceptional case that strong reasons are shown for reconsideration.'
He went on to conclude that to reconsider his judgment on the grounds suggested would not answer the interests of justice but would subvert the appeal process.
"94. Once a judgement has been handed down or given, there are obvious reasons why the court should hesitate long and hard before making a material alteration to it. These reasons have been rehearsed in the cases to which I have referred and I need not elaborate them further. The cases also acknowledge that there may very occasionally be circumstances in which a judge not only can, but should make a material alteration in the interests of justice. There may for instance be a palpable error in the judgment and an alteration would save the parties the expense of an appeal. On the other hand, reopening contentious matters or permitting one or more of the parties to add to their case or make a new case should rarely be allowed. Any attempt to do this is likely to receive summary rejection in most cases. It will only very rarely be appropriate for parties to attempt to do so. This necessarily means that the court would only be persuaded to do so in exceptional circumstances, but that expression by itself is no more than a relatively uninformative label. It is not profitable to debate what it means in isolation from the facts of a particular case."
He went on to state that while it was only a label he preferred Rix LJ's 'strong reasons' to 'exceptional circumstances'. He held that the judge having been persuaded that his initial view was wrong he was positively obliged to alter it. Peter Gibson LJ stated:
"120. With one possible qualification it is in my judgment incontrovertible that until the order of a judge has been sealed he retains the ability to recall the order he has made even if he has given reasons for that order by a judgment handed down or orally delivered. That was established in two decisions of this court: Millensted v Grosvenor House (Park Lane) Ltd. [1937] 1 KB 717 and Pittalis v Sherefettin [1986] QB 869. Such judicial tergiversation is in general not to be encouraged, but circumstances may arise in which it is necessary for a judge to have the courage to recall his order. If, as in Millensted and Pittalis, the judge realises that he has made an error, how can he be true to his judicial oath other than by correcting that error so long as it lies within his power to do so? No doubt that will happen only in exceptional circumstances, but I have serious misgivings about elevating that correct description of the circumstances when that occurs as exceptional into some sort of criterion for what is required for the recalling of an order before it is sealed. The possible qualification to which I have referred is where the judgment handed down or delivered has reasonably been relied on by a party who has altered his position irretrievably in consequence. In such a case the interests of justice may require the judge not to resile from that judgment even if the order has not been sealed. But that is not this case, where it is not suggested that the claimant had altered her position as a result of the draft judgment."