JUDGE REFUSES TO VARY THE TERMS OF ORIGINAL ORDER: DEFENDANT’S APPLICATION FOR RECONSIDERATION DID NOT FLY

In Walton Family Estates Ltd & Ors v GID Services Ltd & Ors [2021] EWHC 464 (Comm) Andrew Hochhauser QC, sitting as a judge of the High Court, refused a defendant’s application to reconsider the terms of an earlier order.  The “Tibbles” criteria were applied.

THE CASE

The court had given summary judgment for the claimant and required the defendants to remove two 747 planes that were unlawfully remaining on the claimants’ premises.  A court order made detailed provisions for the removal of the aircraft, which involved dismantling them.

THE DEFENDANTS WRITE TO THE COURT UNILATERALLY

Thereafter there was an unusual step in that one of the defendants wrote to the court unilaterally, without copying any other party in.

1. 1. Thereafter, after a short extension granted by me, at 10 am on 26 January 2021, Walton 5 was served, setting out the difficulties described by Mr Cloherty. The Order was about to be drawn up and sealed that day when, at 2.05 pm, I received an email from a Mr John Bennett of JSS’s legal department, which was not copied to anyone else, including anyone on behalf of the Claimants, or to their own legal representatives, stating:

“I am writing to you on behalf of Japan Sky Services KK, 8th defendant in the claim of Walton Family Estates Limited & Others and GJD Services Limited & Others. We would like to respectfully express our concern that we are not allowed to file a reply to D Walton’s witness statement, which he has submitted today. It is crucial for us to be able to file an answer. Would you be so kind as to allow us to do so?”

I replied to Counsel for the Claimants, the solicitor for the Fifth Defendant (its Counsel no longer being instructed), Counsel for JSS, Mr Tame of Commercial Court Listing Office and my clerk, by an email, timed at 3.58pm, in the following terms, I said as follows:

“Dear all,

I was concerned to receive the ex parte communication below from the Eighth Defendant’s legal department when they are represented by solicitors and Counsel. That must cease. In future, all communications must be by Counsel, or in the case of the Fifth Defendant, its instructing solicitors, copied to all other parties and Mr Tame of LCCC Listing.

Any application must be made by Mr Townsend on behalf of the Eighth Defendant. If any application is made, it will be necessary for him to address:

(1) Why no information was provided on the logistics of the removal of the fuselage, either in submission or evidence at the hearing on 21 January. I was expressly told there was no detail that could be given;

(2) Why, at that hearing on 21 January, when I ordered the Claimants provide a witness statement addressing its submission made, there was no request to file any evidence on behalf of the Eighth Defendant, nor after the hearing, until this afternoon at 14.05.

I await to hear from Mr Townsend. If an application is made, I will then consider it.

Yours sincerely,

Andrew Hochhauser“.

1. 1. Thereafter, I was informed by Mr Townsend that an application was to be made. This led to the present application. The supporting evidence was to be served by noon on 29 January 2021. In the event, at JSS’s request, I granted two further extensions of time, the first to 4 pm that day, and the second to 9 am on 30 January 2021, when Webber 3 was served. I was told that this further time was necessary because a signed version was still to be received and “an unforeseen issue has arisen which requires clarification for professional reasons“.

THE LAW RELATING TO VARIATION OF AN ORDER: TIBBLES IN ACTION

The judge then considered the legal principles relating to variation of a Court order.

The Law

1. 1. The application is made under the provisions of CPR 3.1.7:

“A power of the court under these rules to make an order includes a power to vary or revoke the order”.

1. 1. The material authority on the principles governing the exercise of the power under CPR 3.1.7 is the Court of Appeal decision in Tibbles v SIG PLC (T/A Asphaltic Roofing Supplies) [2012] EWCA Civ 518. There, Rix LJ, giving the principal judgment, with which Etherton LJ (as he then was) and Lewison LJ agreed, stating at [39]: –

“In my judgment, this jurisprudence permits the following conclusions to be drawn:

(i) Despite occasional references to a possible distinction between jurisdiction and discretion in the operation of CPR 3.1(7), there is in all probability no line to be drawn between the two. The rule is apparently broad and unfettered, but considerations of finality, the undesirability of allowing litigants to have two bites at the cherry, and the need to avoid undermining the concept of appeal, all push towards a principled curtailment of an otherwise apparently open discretion. Whether that curtailment goes even further in the case of a final order does not arise in this appeal.

(ii) The cases all warn against an attempt at an exhaustive definition of the circumstances in which a principled exercise of the discretion may arise. Subject to that, however, the jurisprudence has laid down firm guidance as to the primary circumstances in which the discretion may, as a matter of principle, be appropriately exercised, namely normally only (a) where there has been a material change of circumstances since the order was made, or (b) where the facts on which the original decision was made were (innocently or otherwise) misstated.

(iii) It would be dangerous to treat the statement of these primary circumstances, originating with Patten J and approved in this court, as though it were a statute. That is not how jurisprudence operates, especially where there is a warning against the attempt at exhaustive definition.

(iv) Thus there is room for debate in any particular case as to whether and to what extent, in the context of principle (b) in (ii) above, misstatement may include omission as well as positive misstatement, or concern argument as distinct from facts. In my judgment, this debate is likely ultimately to be a matter for the exercise of discretion in the circumstances of each case.

(v) Similarly, questions may arise as to whether the misstatement (or omission) is conscious or unconscious; and whether the facts (or arguments) were known or unknown, knowable or unknowable. These, as it seems to me, are also factors going to discretion: but where the facts or arguments are known or ought to have been known as at the time of the original order, it is unlikely that the order can be revisited, and that must be still more strongly the case where the decision not to mention them is conscious or deliberate.

(vi) Edwards v. Golding is an example of the operation of the rule in a rather different circumstance, namely that of a manifest mistake on the part of the judge in the formulation of his order. It was plain in that case from the master’s judgment itself that he was seeking a disposition which would preserve the limitation point for future debate, but he did not realise that the form which his order took would not permit the realisation of his adjudicated and manifest intention.

(vii) The cases considered above suggest that the successful invocation of the

rule is rare. Exceptional is a dangerous and sometimes misleading word: however, such is the interest of justice in the finality of a court’s orders that it ought normally to take something out of the ordinary to lead to variation or revocation of an order, especially in the absence of a change of circumstances in an interlocutory situation.

[Emphasis added]

1. 1. As I said earlier, the application is supported by Webber 3. I am willing to consider that witness statement for the purposes of the relief sought in this application, and I therefore grant permission for it to be adduced.

1. 1. Far from challenging the evidence given by Mr Walton in Walton 5 as to the impracticability of removing the 747s by road, at paragraphs 8, 15 and 16 of Webber 3, Mr Webber agrees with him. At paragraph 15, he describes it as “the least viable option“. It is therefore somewhat surprising that JSS was urging the Court to approve this method of a removal at the hearing on 21 January 2021. Instead, Mr Webber introduces a wholly new proposed method of removal, no mention of which was made before, namely removal of the aircraft by an airlift. The explanation for not referring to this is to be found at paragraph 5 of Webber 3, where he says: “The Eighth Defendant was unwilling to disclose its methodology regarding removal by lifting, as it considered the Claimants would simply object to any method of removal other than dismantlement. It was for that reason that we did not instruct our counsel in respect of any detailed methodology“.

1. 1. Mr Townsend, this morning, was unable to tell me why, however, it was felt appropriate to advance what is now described as the least viable option as the appropriate method to take.

1. 1. Webber 3, however, does not address why no application was made on behalf of JSS at the hearing on 21 January 2021 to serve responsive evidence to the Claimants’ evidence that I had ordered. The detail of the proposed airlifting exercise is set out at paragraphs 18 to 29 of Webber 3. It is clear that this is a highly complex operation involving up to four M-26 helicopters and will require permits from at least the Civil Aviation Authority, regional emergency services and the destination airport, in order to complete the airlift in respect of both 747s. It will also require partial dismantlement. That aspect is set out in paragraph 7 of JSS’s skeleton argument, by reference to Mr Webber’s witness statement. It will require, in preparation of the aircraft for removal by airlift, (a) the removal of the engines, (b) the removal of the horizontal stabiliser, (c) the removal of the fin and rudder, (d) the removal of the near fuselage behind pressure bulkhead, (e) the support of the fuselage on purpose-built cradles to be used as a lifting frame, (f) the removal of the undercarriage, (g) the removal of all seats, (h) the removal of the wings’ secondary structure and flying surfaces, (i) supporting and disconnecting the wings along the production joints.

1. 1. Mr Webber relies upon a report “which was created in October of 2020” (see paragraph 2 of Webber 3). This is evidence that JSS had had for some two months before the hearing and three months before the handing down of the judgment on 21 January 2021. I note that, at page 11 of the report, there is the statement “these images suggest a route based on the author’s limited knowledge of the procedures needed“. I should also record that, at page 1 of the report, it states that, “due to access and egress restriction of the Bruntingthorpe site, road movement is the least likely option, as the site was never intended for this kind of operation and development of the site, since its change of use to a storage site has made the access / egress restrictions more of an issue“.

THE RESULT: APPLICATION DISMISSED

The judge rejected the defendant’s application.  The material relied upon should have been before when the order was made. There was no good reason for that material not to have been used.  There had been no change of circumstances.

1. 1. I have reached the firm conclusion that this application should be dismissed. I do so for the following reasons:

(1) In my view, there has been no material change of circumstances, so as to justify the amendments to the Order sought by JSS. The proposed method was one that could have been advanced at the hearing on 21 January 2021. Instead, a conscious decision was made not to do so.

(2) The evidence adduced in Webber 3 could have been put before the court on 21 January 2021, or at least an application could have been made then to adduce it. It was not.

(3) Applying the Tibbles principles accordingly, there is no basis or justification for amending the Order as formulated.

(4) That disposes of the application. I would, however, indicate that even were I prepared to consider the evidence contained in Webber 3 on the basis of a material change in circumstances, I do not regard it as forming a proper basis on which to grant the application and vary the order. In short, I accept the criticisms of it that have been made by Mr Peplow and Mr Cloherty on behalf of the Claimants. The witness statement is made by someone who has no formal licence aircraft engineering qualification. The report itself is qualified – see the conclusion to which I have earlier referred. This is from someone who states, at page 11 of the report, that he has “limited knowledge of the procedures needed“. I accept that there is some ambiguity of exactly what is being referred to there, and that in paragraph 11 and 12 of Webber 3, Mr Webber makes clear that he has the experience of working with aircraft and engineering companies since 1998, but nonetheless, it is not a phrase which inspires confidence.

(5) The conclusion of the report states “this is not an exhaustive report, but a framework of what would be required, along with the overriding caveat that Boeing would have to sign off before the project is begun if the end goal is restoration to flight“. I was informed by Mr Townsend that no enquiries have been made by JSS to Boeing to date and that a site visit yet to take place will be required.

(6) There is no evidence that JSS has determined which company will provide the helicopters, nor does it exhibit any enquiries as to the actual availability of the requisite helicopters. Paragraph 25 of Webber 3 simply lists five helicopter companies, described as “partner companies”, but it does not appear that it has approached the owners of such helicopters to consider the viability of airlifting the 747s. They have not made any applications for the various permits which would be necessary. No consideration has been given to the level of disruption that would be caused to the operation at the Aerodrome. There is no suggestion that any arrangements have been made with any airport that would receive the 747s.

(7) This timetable of achieving the removal of the 747s by airlifting by 15 April 2021, seems to me to be aspirational, at best. Mr Townsend frankly admitted that there was no detail at all contained in Webber 3 to suggest that all the necessary steps, including the numerous contractual arrangements and permissions needed, could be carried out by then.

(8) Finally, Mr Townsend asked for more time, even if the option of airlifting the 747s as a method of removal was rejected. In my judgment, there is no basis for such an extension. The only change of circumstances is the delay caused by the making of this application, and, as I have found, it was open to JSS to raise the possibility of airlifting the 747s on 21 January, but they consciously chose not to do so.

COSTS AWARDED ON THE INDEMNITY BASIS

The judge considered that the application represented unreasonable conduct and awarded costs on the indemnity basis.