Kanoria v Esols Worldwide Ltd

Post-judgment material will not justify reconsideration where it does not affect the factual or legal premise on which the appellate decision was reached. A party seeking reconsideration should not resile from an accepted premise or use the application to reargue matters addressed at the hearing. Where the original decision rested on a party having had no notice of the case advanced against it, later material must demonstrate a real change to that premise before the order can be revisited.

This supplementary judgment concerned an application by the appellants in Kanoria v Esols Worldwide Ltd, following an appeal from the High Court of Justice, Queen’s Bench Division, Commercial Court, before Mrs Justice Gloster. The Court of Appeal’s earlier decision had proceeded on the basis that a case had been advanced against Mr Guinness in the arbitration without his knowledge or opportunity to meet it.

After judgment, the appellants produced further submissions and evidence concerning a two-page document said to record submissions made to the arbitrator. They sought reconsideration before the order was drawn up. The central issue was whether the additional material affected the basis of the Court’s earlier decision.

1. Application dismissed with costs. The Court of Appeal’s order was to be perfected.
2. The earlier decision had been made on the facts placed before the Court at the appeal hearing. Those facts included a two-page document presented by the appellants as submissions made to the arbitrator before the award. Although the arbitrator had not referred to the document, it provided a possible juridical basis for the award.
3. The decisive premise of the earlier decision was that a case had been advanced against Mr Guinness of which he had no knowledge and which he was therefore unable to meet. The further submissions and evidence supplied after judgment concerned the document’s provenance but did not alter that premise.
4. The appellants had not sought to place the further evidence before Mrs Justice Gloster. When asked whether there was any possible juridical basis for the award, counsel had said that there was not. On the renewed application, counsel sought to resile from the position accepted at the original hearing, to suggest that the arbitrator had ignored the submissions, and to advance further argument amounting in substance to a reargument of matters already before the Court.
5. The Court had initially considered dealing with the matter on paper, but reconvened to give the appellants an opportunity to make further submissions. Having considered those submissions, it concluded that the additional facts did not affect the basis of the decision and provided no reason to change it.

1. Court of Appeal (Civil Division): An appeal from the High Court of Justice, Queen’s Bench Division, Commercial Court, before Mrs Justice Gloster. The citation of the High Court decision is not stated in the judgment.
2. Court of Appeal (Civil Division): In this supplementary judgment, the appellants’ application to reconsider the earlier decision was dismissed with costs: [2006] EWCA Civ 323.