Reopening Case After Final Judgment

Stewart v Engel and another (CA TLR 26 May)

The CPR have not taken away a judge’s discretion to reopen an issue by giving permission to a claimant to amend her pleading despite having delivered his final judgment. However, the stringent principles as to the exercise of discretion in these circumstances identified In Re Barrell Enterprises ([1973] 1 WLR 19) still applied. There was a fundamental difference in the principles applicable when argument before the judge was still open and those which applied once judgment had actually been delivered. After judgment had been delivered there could be an amendment only in exceptional circumstances. In the present case the judge had on more than one occasion during the hearing suggested to counsel for the claimant that he should consider making a claim in conversion, but counsel had declined the judge’s invitation to amend the statement of claim to include such a claim. It was only after judgment had been delivered that the claimant consulted leading counsel who applied for, and obtained, leave to amend the statement of claim to allege conversion. In allowing an appeal against the judge’s decision the court held that the judgment and order had not taken the parties by surprise: the claimant’s legal advisers had declined a number of opportunities to take the point. The fact that leading counsel had subsequently advised the claimant to do so was not an exceptional circumstance justifying the exercise of the jurisdiction.