Quan v Bray & Anor

A court may reconsider a judgment before the order is sealed, including an appellate judgment, but such applications are exceptional. They are not an opportunity to reargue the merits, add to a party’s case or advance a new case. The grant of permission to appeal does not set aside the first-instance judgment, nor confirm or reject its findings. It records only a real, more than fanciful, prospect that the appeal may succeed because the judge may have erred. Arguments against permission should ordinarily be advanced at the full appeal. Serious costs and other consequences do not, without more, justify reopening the permission decision.

This supplemental judgment concerned an application by Stuart Bray to reverse, revisit or clarify the Court of Appeal’s decision of 4 December 2015 granting Li Quan permission to appeal against an order made on 27 October 2014 by Sir Paul Coleridge sitting as a High Court Judge in the Family Division.

Bray argued that the permission judgment contained factual errors, that the court had been misled at the oral permission hearing, and that the first-instance reasoning was clear and cogent. Li Quan opposed the application. Save China’s Tigers was essentially neutral. The central issue was whether the permission decision should be reopened before the order was sealed.

Application dismissed. The Court of Appeal declined to reverse, revisit or clarify its decision granting permission to appeal.

1. A party may make a so-called Re Barrell Enterprises application to reconsider a judgment, including a judgment of an appellate court, before the order is sealed. However, material alterations to a judgment in the interests of justice will be rare. The court referred to Re Barrell Enterprises [1973] 1 WLR 19 and Gravgaard v Aldridge & Brownlee The Times, December 2, 2004 CA.
2. The grant of permission to appeal does not set aside the first-instance judgment and does not confirm or reject any of its findings. It merely records that the proposed appeal has a real, more than fanciful, prospect of success because the judge may have fallen into error.
3. Gravgaard established that further submissions will only rarely justify reopening contentious matters or adding to or advancing a new case. Similarly, in Daniels v Thompson [2004] EWCA Civ 307, the Court of Appeal refused permission for further oral or written submissions after receipt of a draft judgment.
4. Bray’s submissions amounted firmly to a reargument of the case. He could advance those points at the full appeal. The court acknowledged the serious costs and possible dissipation of funds, but those consequences did not justify reopening the permission decision.

Bray was given until 5 January 2016 to file case-management submissions.

• Court of Appeal (Civil Division): On 4 December 2015, in the judgment reported at [2015] EWCA Civ 1253, Briggs LJ and King LJ granted Li Quan permission to appeal against the order made on 27 October 2014 by Sir Paul Coleridge sitting as a High Court Judge in the Family Division.
• Court of Appeal (Civil Division): In this supplemental judgment, the court dismissed Stuart Bray’s application to reverse, revisit or clarify the permission decision before the order was sealed. The full appeal remained to be heard.