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Stewart v Engel, Court of Appeal

1 June 2000
The issues

Power to re-open the issue after final judgment

The facts

This was a commercial case. The Judge in the course of the Trial asked Counsel for the Claimant to reconsider the way in which the claim was put exaggerated an amendment. Her Counsel rejected the offer. Before circulating the draft Judgment the Judge repeated his invitation to seek an amendment indicating that as it stood the Claimant would not succeed. On September 24th 1999 when Judgment was handed down, the Judge asked again whether it was sought to amend the pleadings and Counsel responded with an unqualified “no”.

The final version of the Judgment contains a sentence reflecting that exchange. In the meanwhile, Legal Aid had been sought and a permission to obtain an Advice from Leading Council obtained. On October 22nd permission was sought to amend the statement as to plead conversion. The Judge gave permission but ordered costs of the Application be given by the Claimant.

The Issue

1. Whether having given Judgment, the Judge had “exhausted all his functions” and had no jurisdiction to re-open the matter.

2. Whether if he did have jurisdiction he had misdirected himself in principle as to the exercise of that discretion

The decision

1. Following in Re BARRELL ENTERPRISES (which had survived the Civil Procedure Rules) the Court had such jurisdiction

2. Discretion was stringently limited. There was a fundamental difference in the principles that applied when argument before the Judge was still open and those which applied once Judgment had actually been delivered.

3. In the former, there was a wide discretion to the amendment in the interest of judgment subject to costs.

4. After Judgment however, the Applicant was obliged to invoke the BARRELL jurisdiction. There had to be exceptional circumstances. In this case the Claimant had been offered the opportunity of an amendment at an earlier stage. The Judgment has not taken the parties by surprise. The fact that leading Counsel subsequently advised was not an exceptional circumstance. Appeal according to The Times “dismissed” but surely they mean “allowed”. (A head note refers to the Appeal being allowed).

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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