The court has dismissed an application to reconsider the calculation of an occupation charge in Docklock Ltd v C Christo & Co Ltd [2021] EWHC 3343 (Ch).
The proceedings arose from complex divorce proceedings. In February 2021, the defendant was ordered to pay to the claimant an occupation charge of just under £123,000 for occupation of premises at 66-70 Parkway in Camden Town between 2014 and 2016.
In reaching his decision, the judge had preferred the evidence of the defendant’s expert, whose annual rent for the property was £79,000, over that of the claimant’s expert, whose annual rent was £142,550. However, before the judge had made a final order – claims for costs and consequential matters were still to be decided – the claimant issued an application for the court to reconsider its decision, arguing that the figure should be much higher. Should the court allow the application?
The principle of finality is of fundamental public importance, and parties who receive a judgment in open court are entitled to act upon it. There is a particular jurisdiction which permits a judge to change an order between the handing down of judgment and the sealing of the order, although in most cases the latter is an administrative function.
The consideration of whether to recall or reconsider judgments is an act of judicial discretion, to be exercised in accordance with the overriding objective of the Civil Procedure Rules to enable the court to deal with cases justly. The court should decide whether the application is reasonably arguable; if it is then the court should consider whether to exercise its discretion based on all relevant factors: AIC Ltd v Federal Airports Authority of Nigeria [2021] 1 WLR 1506.
The claimant took issue with the judge’s characterisation of and criticism of submissions made on behalf of the claimant at the hearing. The judge made minor concessions in this respect but the fact remained that, although the experts had agreed to adopt section 34 of the Landlord and Tenant Act 1954 as the basis for valuation, the claimant’s expert had not valued the property in accordance with that agreement or explained why he had not done so.
The claimant also argued that the defendant had advanced a false case, both in relation to the marketing of the property and in cross-examination at the hearing. Having reviewed the relevant material and exchanges, the court was not willing to draw an inference that the defendant or its solicitors had deliberately misled the claimant and considered that cross-examination on the contents of an expert’s report was perfectly permissible.
The claimant had not raised sufficiently compelling reasons to justify reopening the valuation issue. Even if the judge had been satisfied on this issue, he would not have exercised his discretion to do so as it would be wholly disproportionate – the occupation charge was one discrete issue in a complex account – and the claimant had failed to challenge the fundamental issue that the defendant’s expert had adopted a simple and conventional method of valuation and his final figure was supported by comparables.
Louise Clark is a property law consultant and mediator
