0370 270 6000

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).

Focus on...

Legal updates

Court of Appeal confirms exclusive English jurisdiction clause in excess liability policies in Canadian pipeline dispute

On 10 June 2022 the Court of Appeal upheld an anti-suit injunction granted in favour of insurers by Mr Justice Jacobs in September 2021 restraining proceedings from being brought in Canada and enforcing the exclusive English jurisdiction clause in excess liability policies.

View

Blogs

Payment Fraud landscape shaped by technology in 2021

Payment systems across Europe are under increased pressure to mitigate fraud risks and defend against persistent attacks from enablers using ever more sophisticated and malicious viruses and malware.

View

Legal updates

Gosden and another v Halliwell Landau and another [2021] EWHC 159 (Comm)

This claim addressed the question, of when the date for assessment of damages in cases of negligence should be determined and shows that when appropriate the Courts will depart from the default position.

View

Legal updates

Assessing the scope of employers liability – Chell v Tarmac

These were the opening remarks of Mr Justice Martin Spencer when handing down his Judgment in the recent case of Andrew Chell v Tarmac Cement and Lime Limited [2020] EWHC 2613, the latest in a series of appeals dealing with the scope of vicarious liability.

View

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.

Mailing list sign up

Select which mailings you would like to receive from us.

Sign up