Gillan & Ors v HEC Enterprises Ltd & Ors

A first-instance court should not ordinarily reopen a reserved judgment to admit material that was available at the original hearing but was not deployed. Reopening must serve the overriding objective and be just, proportionate and fair to all parties. A party cannot obtain a second opportunity to present its case merely because the first decision was unfavourable.

Without prejudice privilege is not waived merely because a party relies on open material and thereby presents a picture which the other party says is incomplete. The conventional qualification “without prejudice save as to costs” ordinarily concerns litigation costs. It does not, without something special in the circumstances, extend to an office-holder’s claim for remuneration and disbursements under the Berkeley Applegate jurisdiction.

The court had previously given a reserved judgment concerning two applications arising from the administration of HEC Enterprises Ltd and Deep Purple (Overseas) Ltd. One application concerned permission to continue proceedings despite the statutory moratorium. The other concerned the administrators’ claim for remuneration, costs and disbursements out of trust assets under the Berkeley Applegate jurisdiction.

At the consequential hearing, the administrators sought to reopen or revise the earlier judgment under the jurisdiction discussed in Re L-B (Children) (Care Proceedings) (Power to revise judgment). They sought to rely on without prejudice and without prejudice save as to costs material which had been available before the original hearing but had not then been put before the court. The issue was whether the judgment should be reconsidered on that basis.

1. Application refused. The administrators’ application to reopen the reserved judgment was rejected. The material relied on had been available at the earlier hearing and should have been raised then. The parties had chosen the open material on which the issues were argued, and the court had decided them on that basis.
2. There had been no waiver of without prejudice privilege. Reliance by one party on open material, without referring to privileged discussions, did not waive the privilege merely because the other party considered that the resulting picture was distorted. No separate fairness basis for admitting the material had been established.
3. The phrase “without prejudice save as to costs” ordinarily referred to litigation costs. An application by an office-holder for remuneration and disbursements under the Berkeley Applegate (Investment Consultants) Ltd principle was conceptually different. In the absence of something special, the material could not be admitted by treating “costs” as extending to that application.
4. Unilever plc v Procter & Gamble Co recognised that the public-policy rule excluding without prejudice material could be varied by agreement, including in respects wider than the conventional costs qualification. The court declined to undertake the detailed exercise of construing the material in that way because it could have been deployed earlier and reopening the case would be unfair.
5. The jurisdiction to revise a judgment, discussed in Re L-B (Children) (Care Proceedings) (Power to revise judgment), was governed by the overriding objective. Reopening would increase expense, be disproportionate, delay final resolution, consume an inappropriate share of court resources and give the administrators a second opportunity to present their case. The application therefore had no proper basis and was refused.