Royal Brompton Hospital National Health Service Trust v Hammond & Ors

A court may recall, vary or alter its judgment until the resulting order has been perfected. The power applies whether judgment was delivered orally, circulated in draft or formally handed down.

Once delivery of judgment has begun, however, the discretion must be exercised consistently with the overriding objective and the public interest in finality. A party seeking to reopen argument must demonstrate exceptional circumstances or strong reasons. The opportunity to inspect a draft judgment permits correction of errors; it does not provide dissatisfied parties with another opportunity to refine or repeat their submissions. Culpable delay may count against reconsideration, but the stage reached before perfection is not ordinarily decisive.

The claimant appealed from proceedings in the Technology and Construction Court before His Honour Judge Richard Seymour QC. The Court of Appeal circulated draft judgments to the parties so that typographical errors and obvious slips could be identified before formal hand-down.

Several respondents then submitted that substantive conclusions in the drafts were wrong and asked the court to reconsider them. All parties accepted that the court retained jurisdiction to alter its judgments because no order had been perfected. The dispute concerned how that discretion should be exercised after the process of delivering judgment had begun.

The court also considered an agreed correction to a paragraph addressing a matter which had not formed part of the appeal.

1. Applications refused. The court unanimously refused the respondents’ applications to reopen the substantive arguments. It deleted one paragraph which all parties agreed had been inserted in error because it dealt with a matter outside the appeal.

2. A judge has jurisdiction to recall, vary or alter a judgment or proposed order until the order is perfected. That jurisdiction exists whether the judgment has been delivered orally, circulated to the parties in draft or formally handed down. The Civil Procedure Rules 1998 did not remove it.

3. Supplying a draft under the applicable practice did not amount to giving the judgment for the purposes of rule 40.7. It initiated the process of delivering judgment. Subject to culpable delay, the court rejected the suggestion that its willingness to reconsider should ordinarily depend upon whether the judgment had yet been formally handed down.

4. The discretion must nevertheless be exercised in accordance with the overriding objective. Expedition, fairness, proportional use of court resources, expense and the public interest in finality require a party seeking to reopen argument after delivery has begun to demonstrate exceptional circumstances or strong reasons. Draft circulation exists to facilitate correction and approval of the judgment, not to invite further rounds of argument from dissatisfied litigants.

5. The respondents’ complaints that the court had misunderstood, overlooked or failed expressly to address submissions amounted to attempts to reargue the appeal, sometimes with submissions refined in response to the draft reasoning. The fact that a judgment does not address every submission is not itself an exceptional circumstance. Further argument would increase cost and could generate repeated applications to reconsider revised judgments.

6. The defendants were ordered to pay, in equal shares, the claimant’s costs caused by the hearings since 29 March, subject to detailed assessment.

• Court of Appeal (Civil Division): On an appeal from the Technology and Construction Court, the court circulated draft judgments and subsequently refused the respondents’ applications to reopen the substantive arguments. It deleted an agreed erroneous paragraph and made a costs order: [2001] EWCA Civ 778.
• Technology and Construction Court: The appeal arose from a decision of His Honour Judge Richard Seymour QC. No citation for that decision is stated in the judgment.