Reconsideration By Judge

Compagnie Noga D’Importation Et D’Exportation SA and Others v Abacha and Others (No 2) (QBD ComCt NLJ 11 May p693)

In what circumstances should a judge exercise his jurisdiction to reconsider his judgment before the order has been perfected? The decision in Re Barrell Enterprises [1912] 3 All ER 63l that only in essential circumstances can it be proper for a judge to exercise his discretion to vary a previous order of his once such an order has been made was before the introduction of the CPR, but nevertheless all the considerations which led the court to decide as it did in that case still apply. The reference to exceptional circumstances is not a statutory definition and the ultimate interests involved, whether before or after the introduction of the CPR, are the interests of justice. Provided that the formula of “exceptional circumstances” was not turned into a strait-jacket of its own, and the interests of justice and its constituents as laid down in the overriding principle of the CPR were held closely to mind, the proper balance would not be lost. An “exceptional” case did not have to be uniquely special. “Strong reasons” was perhaps an acceptable alternative. In the present case the losing party claimed that the judge had applied the parol evidence rule in a manner that was inconsistent with binding authority and asked him to reconsider his judgment before the order was effected. What was special, what was exceptional about the instant case? What were the strong reasons? It was not a case of an ex tempore oral judgment. The judgment in the instant case, whatever its defects, had been reserved and was the product of substantial reflection. It was not a case where a new binding precedent had immediately reversed the previous law so as to make a judgment simply unsustainable. It was not a case where a judge had of his own motion immediately come to the conclusion that he was wrong or, as with Jessel MR in Re Australian Direct Steam Navigation Co, Miller’s Case 1876) 3 ChD 661, the judge had realised, after giving an oral judgment, that he had not had his attention directed to the crucial article in the company’s articles of incorporation. It was not a case where, even before judgment, a court had realised that it had not had its attention drawn to the critical section in a statute and had itself required a renewed hearing. It was not a case of new evidence, or of amendment. It was not a case of new thoughts. Nor was it a case such as occurred recently in Spice Girls Ltd v Aprilia World Service BV (TLR 12 September) where, following the handing down of a judgment on quantum, the judge received a submission that permission to appeal should be granted because her judgment was inconsistent with a concession of fact that had been made. The instant case was where it was said that the judge had got it wrong, on points which had been argued. The remedy for such a complaint was to appeal and it was wrong for a judge to be treated to an exposition such as would be presented to a Court of Appeal. If in such circumstances a judge should be tempted to open up reconsideration of his judgment, an appeal would not be avoided, it would be made inevitable. Every case would become subject to an unending process of reconsideration, followed by appeal, both on the issue of reconsideration and on the merits. The application to reconsider the judgment was therefore dismissed.