NO LUCK WHEN REACHING FOR THE SKY: LITIGANTS SEEKING A SECOND BITE OF THE CHERRY FROM THE TRIAL JUDGE GET SHORT SHRIFT

In an earlier post about the case of P (A Child), Re [2018] EWCA Civ 720 we looked at an example where the parties (all the parties in the case) had correctly used the guidance in English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605 to ask for clarification of a judgment.   In Sky Plc & Ors v Skykick UK Ltd & Anor [2018] EWHC 943 (Ch) we see that process being pushed too far.  The unsuccessful party had a change of legal team and attempted (in essence) to use the process to re-argue matters that were not raised at the trial.

“I would make the obvious point that a judge cannot (or at least, should not) be criticised for not addressing arguments which were not advanced before him or for not considering authorities which were not cited to him.

THE JUDGMENT

Mr Justice Arnold had given judgment on the 6th February 2018.  He set out the basis for Sky’s applications that he give additional reasons or re-consider his decision.   (Those applications were not successful).

Sky’s application dated 16 April 2018

  1. The trial of this action took place over the period from 16 to 23 January 2018. The parties were sent the Main Judgment in draft in order that they could notify the Court of typographical and other obvious errors on 1 February 2018. Both parties duly submitted lists of proposed corrections. The final version of the Main Judgment was handed down 6 February 2018. On 16 April 2018, without prior warning to SkyKick, Sky issued an application requesting that “the Court (i) reconsider the Conclusions in paras [174], [258] and [358] of the Judgment and the reasoning on the basis of which they were reached; and/or (ii) provide amplification of the reasons on the basis of which the Conclusions in paras [174], [258] and [358] of the Judgment were reached”.

  2. This application was made on the advice of counsel newly instructed on behalf of Sky following the handing down of the Main Judgment to draft grounds of appeal. He told me that he gave that advice as a result of formulating the draft grounds of appeal which form the basis of Sky’s alternative application for permission to appeal. I am doubtful that this justifies the lateness of the application; but I will let that pass.

  3. Limb (ii) of Sky’s application is advanced on the basis that it is well established that a party should not seek to appeal to the Court of Appeal on the basis that a judge which has given insufficient reasons for the conclusions he has reached in a judgment which has been delivered without first inviting the judge to amplify his reasons. I find it remarkable, and troubling, that it can be suggested that a judgment that runs to no less than 358 paragraphs contains insufficient reasons. It is fair to say that parts of the Main Judgment are directed to issues other than those which are the focus of Sky’s application; but on any view a large part of the Main Judgment deals with the issues with which Sky’s application is concerned. I can see no basis for the suggestion that the Main Judgment contains insufficient reasons for the conclusions reached. I would make the obvious point that a judge cannot (or at least, should not) be criticised for not addressing arguments which were not advanced before him or for not considering authorities which were not cited to him.

  4. Limb (i) of Sky’s application is advanced on the basis that a judge of the High Court has the power to reconsider his judgment at any time up until the order giving effect to it has been perfected by being sealed and that the exercise of this power is not restricted to exceptional circumstances: see In re L (Children) (Preliminary Finding: Power to Reverse) [2013] UKSC 8[2013] 1 WLR 634. The only basis on which it is suggested that I should reconsider the conclusions reached in the Main Judgment, however, is that they are wrong. In my judgment that is not a sufficient justification. The proper course in such circumstances is to seek permission to appeal.

  5. For the reasons given in the two preceding paragraphs, I consider that Sky’s application should be dismissed. Nevertheless, I cannot ignore the fact that Sky’s new counsel has made arguments in support of the application which develop the contentions advanced by Sky at the trial and, perhaps more importantly, has cited a number of authorities which had not previously been cited. In those circumstances, I propose briefly to explain why the new arguments and new authorities have not caused me to change my mind