Heron Bros Ltd v Central Bedfordshire Council (No 2)

A court may revisit a judgment before the order is sealed, but a party is not ordinarily entitled to reopen submissions merely because it has developed a new point based on facts already known before judgment. The court must act judicially, having regard to finality, fairness, proportionality and the overriding objective.

An application to revisit should be considered in stages: whether it should be entertained; whether the new point is reasonably arguable; and, if so, whether directions for a further hearing are required. The unauthorised conduct of litigation does not extend to sending an unissued claim form to the opposing party for information where that act involves no contact with the court.

The claimant had previously succeeded on an application concerning defective service of its claim form. Before the order giving effect to that judgment was sealed, the defendant asked the court to revisit the judgment.

The defendant relied on the claimant’s disclosure that its consultants, Quigg Golden, were not authorised to conduct litigation. It argued that sending the claim form to the defendant was part of unlawful unauthorised litigation conduct and should affect the court’s discretion to cure the defective service. The issues were whether the application should be entertained, whether the point was reasonably arguable, and what costs and permission-to-appeal orders should follow.

1. Application to revisit. The application was not entertained. Under In Re L and Another [2013] 1 WLR 634, a judge may change a decision before the order is sealed, but the overriding objective remains the just disposal of the case. The examples in In Re Blenheim Leisure (Restaurants) Ltd were not a closed list, but concerned obvious error or material overlooked through no fault of the parties. They did not readily cover a post-judgment second thought based on material already in play.
2. The court identified a three-stage approach: first, decide whether the application should be entertained; secondly, if so, decide whether the point is reasonably arguable; and thirdly, if it is, give directions for a short oral hearing unless the parties agree that written submissions suffice.
3. Unauthorised conduct of litigation. Section 12 and Schedule 2 of the Legal Services Act 2007 restrict reserved legal activities. The conduct of litigation includes issuing proceedings, commencing, prosecuting or defending them, and ancillary functions. Following André Agassi v Robinson [2005] EWCA Civ 1507, ancillary functions are formal subordinate steps in litigation and the definition should be construed narrowly because of potential penal consequences.
4. Sending the defendant a copy of an unissued claim form and Particulars of Claim, without contact with the court, was not itself conduct of litigation. The consultants’ letter to the court enclosing documents for sealing and issue was conduct of litigation, but the separate letter to the defendant was not unlawful. The defendant’s point was therefore not reasonably arguable and would not have justified revisiting the judgment in any event.
5. The claimant was awarded 50 per cent of its claimed counsel’s costs, less £4,250 representing the costs of an application to cure the service irregularity that would have been required in any event. The resulting sum of £1,850 was payable within seven days of formal hand-down. Permission to appeal was refused, although time for lodging an appeal notice was extended until formal hand-down.

First-instance decision. The judgment records no prior appellate decision.