JUDGMENTS CANNOT EASILY BE RE-OPENED: NOR IS WITHOUT PREJUDICE PRIVILEGE EASILY WAIVED

In Gillian -v- HEC Enterprises Ltd [2017] EWHC 461 (Ch) Mr Justice Morgan considered an application to reconsider and re-open an earlier judgment, The judgment contains interesting observations about attempts to “reopen” court decisions, the use and alleged waiver of “without prejudice” material and last, but by no means least, the overriding objective. 

“this seems to me to be the plainest case of a party that has argued their case once, obtained an unfavourable result, coming back and saying to the court the matter should be done again based on the material that was available all along in the hope that on the second bite of the cherry the result would be more favourable.”

1. If I were to entertain this application, it would not save expense, it would increase it. It would not be proportionate, it would be disproportionate. I would not be dealing with the matter expeditiously and fairly. I would not be allotting to this application an appropriate share of the court’s resources, but an inappropriate share and I would be depriving other litigants to some extent of the time available to deal with their cases.”

    

THE CASE

The judge had given a judgment on two issues in the case.  The matter was listed to deal with consequential issues.  However one of the parties attempted to persuade the court to reopen the issues,

THE JUDGMENT

1. 1. Unfortunately at this hearing today, which was scheduled to deal with consequential matters, the parties are not agreed on the order I should make to give effect to this part of the judgment. Mr. Cullen QC, acting for the claimants, has invited me simply to make no order on the second application, alternatively to dismiss it. It may be that there is no difference in substance between those two. I have yet to hear from Mr. Sutcliffe QC on behalf of the administrators as to whether he wishes there to be some different order.

   2. Instead of the court being in a position to proceed to deal with consequential matters following a reserved judgment, events have taken a surprising turn at the hearing today. Mr. Sutcliffe, appearing on behalf of the administrators, has made an application asking the court to revise certain conclusions I reached. It is said that I have jurisdiction to do that, pursuant to the principle explained by the Supreme Court in Re L-B (Children) (Care Proceedings) (Power to revise judgment) [2013] 1 WLR 634. Mr. Sutcliffe would ask me not only to revise the judgment or reconsider the judgment, but then produce findings which are at variance from the findings I have already made. To advance that application, Mr. Sutcliffe has shown me a substantial body of material which was not put before me at the hearing in September or at any time prior to the giving of the reserved judgment. I have a fourth witness statement from one of the administrators, exhibiting a very substantial body of material. Part of it I was shown before, being the open exchanges between the parties, but that is supplemented by a substantial amount of material which I have not been taken to in detail but which is either headed “without prejudice” in some cases or, more commonly, “without prejudice save as to costs”.

   3. I have also been told that there were meetings and the words “without prejudice” were used to describe the character of those meetings, although a submission was made to me that that phrase “without prejudice” should in the context be understood as a statement that the statements made at the meeting, the contents of the meeting, the business of the meeting, was without prejudice save as to costs and not without prejudice simpliciter.

   4. Before considering what I should do in relation to the application and the suggested admission of this further material, I think I need to remind myself as to certain things that were said about without prejudice material when the matter was argued earlier. I go to the material that was put before the court before judgment was given. I was provided with a witness statement of Mr. Tregear (on behalf of the claimants) and at paragraph 49 of that witness statement, Mr. Tregear said:

“Following the Administrators’ Report”, in relation to the administration, “I attended a meeting on a without prejudice basis at Fieldfisher’s offices. Fieldfisher have objected to me saying anything as to the attendees, substance and/or outcome of that meeting so I say no more about that meeting.”

1. 1. I also had a witness statement from Mr. Supperstone (one of the administrators), his first, dated 21st June 2016. At paragraph 35 of that witness statement he refers to the fact that a without prejudice save as to costs letter was sent by the claimants’ solicitors to the administrators’ solicitors. He said this:

“I do not say anything about the contents of that letter because they are subject to the without prejudice save as to costs rules and they are therefore confidential at the moment. However, I can say that Fieldfisher responded on behalf of the Joint Administrators on 11 March 2016. Without waiving privilege in any way, I am advised that, in view of the fact that Tregear 1 has referred to both the existence and content of the without prejudice meeting on 22 March 2016 to which I refer to below, it is appropriate for me to refer to at least the existence of without prejudice exchanges between the parties (but not their content) in this witness statement.”

1. At the hearing there was a full discussion, with detailed submissions, by reference to the material before me as to what had happened in this case and why it had happened. Mr. Cullen on behalf of the claimants took me in detail to that material, put forward his analysis of it and invited me to take a certain view of the history. Mr. Sutcliffe dealt with that and responded and asked me to take a different view of the history. I then reserved my judgment.

2. Following the hearing, I received a note prepared by Mr. Sutcliffe and his junior, Mr. Wee. I should preface my comment on this note, that at this stage, which was 5th October 2016, I had decided what to do on the first application. I decided various issues in the underlying litigation so that what remained was the Berkeley Applegate application and questions of costs. The note I received from the administrators’ counsel referred to the question of without prejudice privilege. In paragraph 3 of the note it was said that the court had been made aware of the existence of the without prejudice discussions and then this sentence appears, ‘Quite properly the court was not informed of their content’. There were further statements made as to why the court should not deal with comments that had been made as to the history of the matter and the conduct of the parties. It was said it would be procedurally unjust for the court to do that. However, the whole hearing in September had involved an examination of the history of the matter and the parties chose the material to put before the court.As I read this note it was still being accepted that the court would not have before it, for the purpose of resolving the dispute which the parties had raised, ventilated and argued, the without prejudice material. That caused me no surprise as it seemed to me to be obvious that I would have to deal with the matter on the basis of open material without regard to without prejudice material.

3. Following the administrators’ counsel’s note, I received a note in response from Mr. Cullen, who took the stance that the court should determine the matters which had been ventilated on the basis of the open material and without regard to without prejudice material. I plainly had to deal with this matter in the judgment I gave and between paragraphs 90-94 of the judgment I explained my approach to without prejudice material. I explained that I would decide the issues which had been argued on the basis of the open material the parties had put before the court and without regard to without prejudice material. I added that I thought it was inappropriate for counsel for the administrators to suggest that if only he could refer to without prejudice matters, the case would look better from his clients’ point of view so that the court would be guilty of (his phrase) gross procedural injustice if it decided a case on the basis of the evidence before it.

4. As I earlier indicated, the application which is now made is that I should review the findings and comments I made, replace them with different findings, more favourable to the administrators, and I should do that having admitted the without prejudice, or without prejudice save as to costs, material, heard submissions on it and come to my overall assessment.

5. The first comment to make is that the material which is now put before me was all available in September and it was not provided in September. Mr. Sutcliffe has argued that that material is admissible in a court considering the type of points I considered, having heard them argued in September. If it were admissible then, then it should have been raised then and an application made to admit it, if necessary inviting the court to deal first with other matters in relation to which it was not admissible.

6. As I read the evidence before me in September and indeed the note from counsel in October, it was being accepted that I should decide the issues that had been argued, rather than some only of those issues, on the basis of the material before me.

7. Quite apart from that, I have heard argument today from one side, Mr. Sutcliffe, as to whether the material he wishes now to rely upon is admissible for the purpose of the Berkeley Applegate application. Mr. Sutcliffe makes two submissions in the support of the admissibility of that evidence. First, he says that Mr. Cullen waived the without prejudice privilege in the material and therefore it was open to the other party (the administrators) to regard the material as opened up and available to put before the court. Of course if that had been right, that submission could have been made in September but was not made. However, more fundamentally, I am not persuaded that anything that has happened here has amounted to a waiver by the claimants of this without prejudice material. What Mr. Sutcliffe’s submission came to was that Mr. Cullen’s reliance on open material without referring to the without prejudice material resulted in a distorted picture being provided and if only the without prejudice material could have been admitted the overall picture would have looked different. It is obvious that that does not involve a waiver by the claimants of the without prejudice material. For the sake of completeness, I comment that no other argument based on fairness, apart from waiver, was put to me to support the argument that the material had been admissible .

8. The other argument is that the material in question, or much of it, is headed “without prejudice save as to costs”. It is then said, somewhat adventurously, that when that conventional heading referred to “costs”, it was not confined to litigation costs, but extended to all the issues relating to the application in reliance on the Berkeley Applegate principle. In the absence of something special in the circumstances, I would not accept that submission. Without prejudice save as to costs normally refers to litigation costs. Indeed, I am not aware of any case where it has been held that it could refer to anything else. An application by an office holder for remuneration and disbursements under the Berkeley Applegate principle is not an application for litigation costs. It is conceptually quite different. I will not take time in this judgment today to spell out again what is spelt out in my earlier judgment as to the different bases of the jurisdiction. So, on the face of it, the material which is without prejudice save as to costs cannot be somehow smuggled in on a Berkeley Applegate principle with the suggestion that costs extends to Berkeley Applegate remuneration and disbursements.

9. Mr. Sutcliffe says that if only I were to look at the material I would see that the parties here have used the word “costs” in a special way with a special meaning, and therefore I should read it as extending to costs and also to an application for an allowance for remuneration and disbursements under the Berkeley Applegate principle. Mr. Sutcliffe relies upon a statement in Unilever plc v Procter & Gamble Company [2000] 1 WLR 2436 where Robert Walker LJ, as he then was, spelt out that it is possible to vary by agreement the rule of public policy which is that without prejudice matters are excluded from consideration by the court. The way in which the Lord Justice put it at 2445 D does not confine the possibility of such an agreement to using the phrase “save as to costs” but refers to “in other respects” which could be wider.

10. If I were to follow that submission and apply it to the documents in this case, it would inevitably be a detailed exercise that would take some time. I am not prepared to embark on that exercise. This material, if it were open to that treatment, could have been deployed earlier and was not deployed. The court has conducted a hearing and then given a reserved judgment addressing the arguments that were put in September by reference to the material adduced in September. It does not seem to me to be appropriate or just, certainly not just to the other party to the litigation, for the court to be asked to do that exercise a second time. In other words, this seems to me to be the plainest case of a party that has argued their case once, obtained an unfavourable result, coming back and saying to the court the matter should be done again based on the material that was available all along in the hope that on the second bite of the cherry the result would be more favourable.

11. As to my jurisdiction to re-open the judgment, I was referred to the Re LB case. I take from that that the overriding objective of the hearing in September and of this hearing is to produce a just result, having regard to the definition of overriding objective in the Civil Procedure Rules. I have had regard to the Civil Procedure Rules and it seems to me that a fair application of the definition of overriding objective is wholly in favour of me refusing this application rather than entertaining it.

12. If I were to entertain this application, it would not save expense, it would increase it. It would not be proportionate, it would be disproportionate. I would not be dealing with the matter expeditiously and fairly. I would not be allotting to this application an appropriate share of the court’s resources, but an inappropriate share and I would be depriving other litigants to some extent of the time available to deal with their cases.

13. I have no hesitation in rejecting the application to re-open the judgment. There is no proper basis for it. The suggestion that I should do so would be quite unfair to the other parties. There is of course a process of appeal. I say nothing about that, but sitting at first instance my judgment is my judgment.

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