Michael Earl Wilson v John Forster Emmott

A court cannot use the Barrell jurisdiction to reopen an inter partes appeal once the final order has been sealed or perfected. Nor does Civil Procedure Rules 1998, r 3.1(7), permit a court to reopen such a final order. The appropriate route for challenging alleged errors is the applicable appeal procedure, including the second-appeal requirements. Even before sealing, reopening is discretionary and must be fair and just in light of the overriding objective. A litigant cannot use that jurisdiction to obtain a second opportunity to advance arguments which were, or should have been, made at the original appeal.

Mr Wilson had previously appealed a costs-related order. Mr Justice Saini, sitting with the Senior Costs Judge, dismissed that appeal and gave judgment as [2023] EWHC (QB) 813. The order was sealed on 5 April 2023.

Mr Wilson later applied to set aside what he described as the draft judgment, invoking the Barrell jurisdiction and seeking to introduce new arguments and evidence. The central questions were whether the High Court retained jurisdiction to reopen the appeal, whether Civil Procedure Rules 1998, r 3.1(7), supplied such a power, and whether reopening would in any event be fair and just.

1. Application dismissed. The application was totally without merit. There was no order for costs.
2. The court had no jurisdiction under the Barrell jurisdiction to reopen the appeal after the final order had been sealed or perfected. The court relied on In the matter of L and B (Children) [2013] UKSC 8 at [19] and noted its consideration in AIC Ltd v Federal Airports Authority of Nigeria [2022] UKSC 16. That conclusion applied even if the reopening application had been made before sealing but had been overlooked.
3. Rule 3.1(7) did not extend to varying or revoking a final sealed order following an inter partes appeal. Such a power would undermine the system of appeals from the High Court, the rules for second appeals and the principle of finality.
4. Even if jurisdiction to reopen had existed before sealing, the court would have refused to exercise it. Reopening had to be fair and just, having regard to the overriding objective. The application sought a second opportunity to argue points available at the original appeal and addressed by leading counsel and in the judgment.
5. The proper route for complaints about errors in the judgment and consequential order was an application to the Court of Appeal for permission to bring a second appeal under Civil Procedure Rules 1998, r 52.7.

1. High Court (King's Bench Division): the earlier costs appeal was dismissed, with judgment given as [2023] EWHC (QB) 813.
2. High Court (King's Bench Division): the renewed application to reopen or set aside that decision was dismissed in the present judgment.