Malmesbury & Ors v Strutt & Parker (A Partnership)

A judge may reconsider a delivered judgment before an order giving it effect, but only where strong reasons exist and the conclusion is clearly wrong without prolonged enquiry. Once an order has been sealed, the judge is functus officio in relation to matters determined by the judgment. A later application cannot reopen a complex evaluative assessment merely because further arithmetic or evidence suggests a different result. The appropriate route is an appeal. A sealed order refusing permission to appeal cannot ordinarily be revisited by the judge who made it; any renewed application must be made to the Court of Appeal.

The claimants had succeeded in a professional negligence action against their advisers concerning leases of land to Bournemouth International Airport for car parking. The court had found that a turnover rent should have been negotiated and assessed the likely figure at 10 per cent, while leaving the final assessment of damages for a later hearing.

An order sealed on 30 May 2007 provided for a later trial on outstanding quantum issues and recorded refusal of permission to appeal against the 10 per cent finding. The claimants sought reconsideration of that finding, relying on VAT, the inclusion of income from Field C, and an alleged overstatement in an expert’s figures. Alternatively, they sought renewed permission to appeal.

1. The application to reconsider the 10 per cent finding was refused. The order sealed on 30 May 2007, read with the judgment and the provision for a later quantum trial, necessarily treated liability and the determined damages issues as concluded. It therefore barred reconsideration of matters decided in the judgment.

2. The jurisdiction to alter a judgment before an order is sealed exists only in appropriate circumstances. The authorities, including In re Barrell Enterprises [1973] 1 WLR 19, Pittalis v Sherefettin [1986] QB 868, Compagnie Noga v Abacha [2001] 3 All ER 513 and Robinson v Fernsby [2003] EWCA Civ 1820, establish the need for exceptional circumstances or strong reasons. Finality protects parties from repeated argument and preserves the appeal process.

3. Even if jurisdiction had remained, it would not have been exercised. The assessment of the hypothetical negotiation was evaluative and depended on numerous commercial factors, not merely arithmetic. The judge was not satisfied that the treatment of the expert’s figures was seriously erroneous or that the 10 per cent conclusion was wrong. VAT made only a small difference; inclusion of Field C was justified because the airport would have considered the cumulative effect of a turnover rent; and later adjustments to the expert’s figures were not an appropriate basis for reconstructing the earlier negotiation.

4. The refusal of permission to appeal had been incorporated into the sealed order. The judge therefore had no jurisdiction to entertain a fresh application or to use the slip rule for that purpose. Any application for permission had to be made to the Court of Appeal.

5. Strutt & Parker were ordered to pay one half of the claimants’ costs of the application, assessed at £4,130.