Watchtower Investments Ltd v Payne & Another

The Court of Appeal will not ordinarily reopen an argument after judgment has been initiated by circulating draft judgments. Parties must present the submissions on which they rely at the appeal hearing. Reopening will be permitted only in an exceptional case or for strong reasons. The draft-judgment procedure exists principally to identify typing errors, incorrect references, minor corrections and consequential orders. It is not intended to provide a further opportunity to reargue issues already considered.

The appeal arose from proceedings in the Woolwich County Court before His Honour Judge Welchman. In earlier judgments, the Court of Appeal had decided that an objectively ascertained purpose of the loan was repayment of arrears on a prior mortgage and that the issue should not be remitted for further evidence of the borrowers’ subjective intention.

Before the judgments were formally handed down, the respondents sought to reopen that conclusion. They contended that the issue had not been sufficiently canvassed below, that further evidence and disclosure might be material, and that refusing a remission would breach natural justice. The issue was whether the Court should reopen its provisional conclusions or remit the matter for further evidence.

1. Application refused. The Court of Appeal declined to reopen its earlier conclusions or remit the issue to the county court.
2. The matter had been decided below without oral evidence, and the respondents had not objected to that procedure. The evidence and exchanges before the county court showed that the appellant had made clear that repayment of the prior mortgage arrears was a purpose of the loan. It was therefore inappropriate at that late stage to restart the case with oral evidence and further disclosure.
3. The Court had considered remission during the appeal. The relevant reasons had been put to counsel in argument, so the respondents could not properly claim surprise when the Court concluded that intention should be ascertained objectively.
4. The circulation of draft judgments before formal hand-down is governed by the practice described in [1998] 1 WLR 825. Its purposes include enabling advisers to identify typing errors, incorrect references and other minor corrections, and to agree consequential orders, as explained in Prudential Assurance Company Ltd v McBains Cooper [2000] 1 WLR 2000. It is not a mechanism for reopening argued issues.
5. Following Royal Brompton Hospital NHS Trust v Hammond, parties must place before the Court at the hearing the submissions on which they rely. Only an exceptional case or strong reasons justify reopening an argument after delivery of judgment has begun. No such circumstances existed here.

Lord Justice Clarke and Mr Justice Maurice Kay agreed with Lord Justice Peter Gibson. The application was refused.

• Woolwich County Court: Proceedings were determined by His Honour Judge Welchman without oral evidence.
• Court of Appeal (Civil Division): The appeal was heard by Lord Justice Peter Gibson, Lord Justice Clarke and Mr Justice Maurice Kay. The Court had issued earlier judgments and refused the respondents’ subsequent application to reopen them.