Matlaszek & Anor v Bloom Camillin (A Firm)

The Court of Appeal retains an inherent residual jurisdiction to reopen an appeal after its order has been perfected, whether the order followed a hearing or dismissed the appeal without one. The jurisdiction protects the court’s character as a court of justice, but finality requires its exercise to remain exceptional.

Reopening ordinarily requires clear evidence that a significant injustice has probably occurred and that no effective alternative remedy exists. The effects on others and the applicant’s responsibility for the situation are also material. A voluntary withdrawal founded on a mistaken assessment of law, evidence or litigation risk will not ordinarily suffice.

The defendants appealed against Hart J’s finding that they had negligently advised the claimants during a business sale. Before the appeal was heard, their insurers concluded that the forthcoming assessment of damages would probably establish little or no loss. At the defendants’ request, Deputy Master Joseph therefore dismissed the appeal.

The claimants subsequently served further expert evidence supporting a substantial valuation of their loss. The defendants applied to set aside the perfected dismissal order and revive their appeal. The application raised whether the Court of Appeal possessed jurisdiction to reopen a voluntarily dismissed appeal and, if so, whether the circumstances justified exercising that jurisdiction.

1. Application dismissed unanimously, with costs. Lord Phillips MR delivered the leading judgment. Brooke LJ agreed and gave additional reasons concerning the exceptional nature of the jurisdiction. Laws LJ agreed with both judgments.

2. The Court of Appeal has an inherent residual power to reopen an appeal after its order has been perfected. The power exists whether the order followed a hearing on the merits or dismissed the appeal without such a hearing. The distinction previously drawn in Ogwr Borough Council v Knight could not govern jurisdiction after Taylor v Lawrence [2002] EWCA Civ 90.

3. The power exists because a court must be able to take measures necessary to maintain its character as a court of justice. Its existence is accompanied by a tightly controlled discretion. Finality remains a fundamental requirement of the administration of justice, and reopening concluded litigation may itself cause injustice.

4. The jurisdiction may be exercised only in exceptional or extraordinary circumstances. A significant injustice must probably have occurred, and there must be no effective alternative remedy. The court must also consider the effect of reopening on others and the extent to which the applicant caused its own predicament. An application must follow the written permission procedure established in Taylor v Lawrence and may proceed to an oral hearing only if the court so directs.

5. Ogwr remained applicable to the exercise of discretion. An appellant cannot ordinarily reopen a voluntarily dismissed appeal merely because the decision was made under a reasonable legal misapprehension, even where binding authority supporting that understanding is later reversed.

6. The defendants’ assessment that their appeal would be unnecessary depended on litigation risk. The possibility of further evidence at the damages assessment remained inherent when they withdrew. Any injustice arising from admitting that evidence could have been addressed by the judge conducting the assessment, and permission could have been sought to appeal his evidential ruling. No significant injustice had probably occurred and an alternative remedy had been available.

• Court of Appeal (Civil Division): The court dismissed unanimously the defendants’ application to set aside the perfected order dismissing their appeal: [2003] EWCA Civ 154.
• Court of Appeal, Deputy Master: On 12 March 2002, Deputy Master Joseph dismissed the defendants’ appeal at their own request.
• Hart J: On 15 February 2001, Hart J found the defendants negligent and ordered damages to be assessed on the basis that proper advice would have caused the claimants to withdraw from the transaction. Permission to appeal was refused at that stage but later granted by the Court of Appeal.