Absolute Lofts South West London Ltd v Artisan Home Improvements Ltd & Anor (No. 2)

A first-instance court may reconsider a judgment after it has been handed down, at least before the order is drawn up. The overriding objective governs the discretion. Where reconsideration requires fresh evidence, the Ladd v Marshall factors remain highly relevant, though they may be applied more leniently than on appeal. A party that overlooked relevant evidence without reasonable excuse faces a high barrier. Reopening may nevertheless be justified where the fresh evidence places the issues in a bright and truly compelling new light. Evidence showing only that the original assessment may have been imprecise will not ordinarily suffice.

Following an earlier judgment awarding Absolute Lofts compensatory damages and additional damages under article 13(1) of the Enforcement Directive, the claimant sought reconsideration after discovering that a page of a photographic-library licence had been omitted from the trial bundle. It argued that the missing terms showed that the licence was not a reliable measure of the cost of lawful replacement images.

The issue was whether the judgment should be reopened to consider evidence that had been available at trial but was overlooked.

1. Jurisdiction and governing principle. The court had jurisdiction, at least before the order was drawn up, to entertain an application to reconsider a judgment. The overriding objective required the case to be dealt with justly, fairly, expeditiously and at proportionate cost. The principles stated by Vringo Infrastructure Inc v ZTE (UK) Limited [2015] EWHC 214 (Pat) were applied.
2. Fresh evidence. Although the application did not seek to amend the pleadings, it required the court to consider evidence not before it at trial. The factors in Ladd v Marshall [1954] 1 WLR 1489 were therefore highly relevant: reasonable diligence, probable important influence on the result, and apparent credibility. They were not decisive and were to be applied in attenuated form, as explained in Vringo Infrastructure Inc v ZTE (UK) Limited [2015] EWHC 214 (Pat).
3. The claimant failed on the reasonable-diligence requirement. The relevant licence page had been overlooked and no reasonable excuse was advanced. The overriding objective makes it important that parties place all relevant evidence before the court at trial. Such a failure creates a high barrier to reopening proceedings after judgment.
4. A sufficiently powerful case might overcome that barrier, for example where the fresh evidence unarguably placed the issues in a bright and truly compelling new light. The missing licence terms did not do so. They might make the original damages assessment less precise, but they did not show that lawful replacement images could not have been obtained for a few hundred pounds.
5. The application for reconsideration was refused.

First-instance decision. The judgment records an earlier judgment in the same proceedings, but no appellate decision.