Blue Manchester Ltd v North West Ground Rents Ltd

A court cannot revisit a sealed and unappealed order unless the order authorises reconsideration or an applicable general jurisdiction is engaged. Where an order permits an alternative remedial scheme if the ordered works are not reasonably practicable other than at disproportionate cost, the court should assess the practicability and cost of both schemes together. The inquiry is broad and holistic. A scheme may remain reasonably practicable even though it is technically difficult, provided competent contractors can overcome the difficulties. Disproportionate cost requires comparison between the cost and the benefit of the ordered works. The permission cannot ordinarily be used to reopen the merits or advance an alternative which could have been presented at trial. A reasonable extension of time may nevertheless be granted where the applicant has not acted significantly or culpably unreasonably.

The claimant owned and operated the hotel element of Beetham Tower. The defendant, its landlord, had been ordered after trial to undertake specific remedial works to defective shadow box units in the tower’s glazed façade and to restore substantially the original appearance. The order permitted an alternative remedial scheme if investigation showed that the ordered works were not reasonably practicable other than at disproportionate cost.

The defendant applied to substitute a cheaper scheme involving continuous pressure plates and cosmetic cover caps, and sought an extension of time. The claimant contended that the ordered scheme remained practicable and proportionate, and that the application impermissibly sought to reopen the original judgment.

1. Application to vary dismissed. The ordered scheme remained in force. The defendant was not permitted to substitute option C.
2. The particular permission to apply was construed as permitting comparison between the ordered scheme and the proposed alternative. The court had to undertake a broad, holistic assessment of the advantages and disadvantages of each scheme, including practicability, cost, time, health and safety risks and aesthetic considerations.
3. The ordered scheme was reasonably practicable. Although difficult and challenging, the evidence showed that its difficulties could be addressed by a competent contractor. Technical difficulty did not establish lack of reasonable practicability.
4. The cost of the ordered scheme was not shown to be disproportionate. The court had to compare the cost with the benefit of restoring both the structural performance and the original design intent. The estimated cost of approximately £6 million was not obviously disproportionate on the evidence.
5. The alternative scheme had substantial advantages in speed, cost and reduced risk, but it would produce a materially inferior appearance. The claimant’s preference for restoration of the original appearance was neither idiosyncratic nor perverse. The defendant’s failure to advance the alternative at the original trial was a powerful reason against permitting it to be introduced later.
6. The permission to apply could not be used to reinvestigate the merits of the original decision or to obtain a second opportunity to advance evidence and arguments that could have been presented at trial. The principle stated in Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5 was apt.
7. The time for compliance with the original scheme was extended to 31 July 2022. The defendant had not acted unreasonably to a significant extent, and refusing a reasonable extension would effectively risk placing it in contempt of court.