Professional negligence – Surveyor – Judge determining issues as to damages and refusing permission to appeal – Court drawing up order – Parties asking judge to reconsider judgment – Whether order barring court’s jurisdiction to revisit judgment – Application refused
The claimants brought an action for professional negligence against the defendant in connection with the leasing of car-parking land to Bournemouth International Airport (BIA). The judge found that negligence was established, although not to the extent alleged by the claimants: [2007] EWHC 999 (QB); [2007] 21 EG 130 (CS). At the parties’ request, he did not determine the amount of damages to be awarded. However, he did make some findings relating to damages. The judge refused permission for the claimants to appeal his decision that had the defendant fulfilled its duty, the claimants would doubtless have agreed with BIA a rent of 10% of the turnover on top of base rent.
An order to reflect what had occurred on 11 May was agreed between counsel and, in accordance with CPR 40.2(2)(6), was submitted to the Court Office and sealed on 30 May. Paragraph 1 of the order provided: “1. There be a trial on the outstanding aspects of quantum needed to assess the damages to be paid by the first defendants to the claimants, such trial to be reserved to Mr Justice Jack.”
By an application dated 23 July, the court was asked to increase the turnover rent proposed by the judge from 10% to 20%. If the court were to accede to the request, it would approximately double the claimants’ damages. As an alternative, the court was asked to revisit its refusal of permission for the claimants to appeal on that issue.
Held: The application was refused.
It was well established that where a judgment had been delivered the judge might, in appropriate circumstances, alter it at any time prior to an order giving effect to the judgment. Once the order was in place the only option to a dissatisfied party was to appeal. The jurisdiction would be exercised only if there were a strong reason to do so. Stringent limitation was necessary since parties to litigation should ordinarily be able to treat a delivered judgment as being final, and be free from the risk that a dissatisfied party might reopen his arguments before the judge. As a matter of policy, it was appropriate that there should be a bar to the exercise of the jurisdiction: In Re Barrell Enterprises [1973] 1 WLR 19 and Pittalis v Sherefettin [1986] 1 EGLR 130; (1986) 278 EG 153 applied.
In the present case, the order was to be treated as a bar for the purpose of the court’s jurisdiction to reconsider any matter determined by the judgment. When read in the context of the reference at the start of the order, para 1 provided that aspects of the amount of damages not determined by the judgment would be decided at a subsequent trial, thus providing, by necessary implication, that the issues as to liability and some issues as to damages had been determined by the judgment and were binding between the parties.
The order was intended to draw a line under the proceedings to date and to provide for the future. The court had no jurisdiction to consider any fresh application for permission to appeal. Such permission could be granted only by the Court of Appeal.
Anthony Speaight QC and Kevin Farrelly (instructed by Stockler Brunton) appeared for the claimants; Timothy Lamb QC and John Gallagher (instructed by Williams Holden Cooklin Gibbons LLP) appeared for the first defendant.
Eileen O’Grady, barrister
