Over a barrel

Where were the traces of her early cares, her sufferings, and fatigues? All gone. Sorrow was dead indeed in her, but peace and perfect happiness were born; imaged in her tranquil beauty and profound repose.

And still her former self lay there, unaltered in this change. Yes. The old fireside had smiled upon that same sweet face; it had passed, like a dream, through haunts of misery and care; at the door of the poor schoolmaster on the summer evening, before the furnace fire upon the cold wet night, at the still bedside of the dying boy, there had been the same mild lovely look.

So shall we know the angels in their majesty, after death.

-The Old Curiousity Shop, Charles Dickens

The Home Secretary has resigned.

The government continues to disintegrate.

As has been observed of Dickens’ purple prose in The Old Curiousity Shop, detailing the death of Little Nell, it would take a heart of stone not to laugh.

There have been so many volte faces in the last week, that it seems politicians are constantly changing their minds as to what their best course of action may be, on a variety of matters.

One of the points that arises from time to time, in litigation is when a judge having gone through the trial, given judgment, made an Order, changes her mind before the Order is sealed, rendering the court functus officio. What scope does a judge at first instance have to revisit matters at that advanced stage of the proceedings? She certainly has some scope, but it is not an unprincipled free for all, as to whether she should set aside her decision. All barristers at some stage in their careers will encounter the Barrel jurisdiction as I always call it, after the case of the same name. Its use can sink a case at the last moment, or save it from foundering. 

In the Supreme Court decision of AIC Ltd v Federal Airports Authority of Nigeria [2022] UKSC 16 the court considered this very doctrine and as it is the Supreme Court, the decision and principles should be regarded as authoritative, when considering the scope and application of the doctrine in the future. As noted by Lord Briggs the question was this:

1. A judge delivers judgment in open court and makes an appropriate order. A few hours, or days, later, but before the formal written minute of the order has been sealed by the court, the judge receives a request from one of the parties to re-consider both the judgment and the order. What should the judge do? This problem may arise at all levels in civil litigation, from interim and case management hearings, to final orders made at the end of a trial and even to orders made, but not yet sealed, on appeal. There is no doubt that the judge has power to re-open the judgment and order at any time until the order has been sealed, but the question raised by this appeal is by what process, and in accordance with what principles, should the judge decide whether or not to exercise that power?

The Supreme Court went onto note that the starting point, in a sense is what has been termed the “finality principle”:

31. As stated in Sainsbury’s Supermarkets, the Overriding Objective implicitly affirms and reinforces the long-standing principle of finality, which had been an objective of civil procedure for at least 175 years: see eg Henderson v Henderson. Litigation cannot be conducted at proportionate cost, with expedition, with an appropriate share of the court’s resources and with due regard to the rules of procedure unless it is undertaken on the basis that a party brings his whole and best case to bear at the trial or other hearing when a matter in dispute is finally to be decided (subject only to appeal). As Lewison LJ said in FAGE UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; [2014] FSR 29, at para 114:
“The trial is not a dress rehearsal. It is the first and last night of the show.”

In that respect we are in full agreement with Coulson LJ, in the Court of Appeal at para 50, when he said:
“The principle of finality is of fundamental public importance … The successful party should not have to worry that something will subsequently come along to deprive him or her of the fruits of victory. The unsuccessful party cannot treat the judgment that has been handed down as some kind of rehearsal, and hurry away to come up with some new evidence or a better legal argument. … [T]here is a particular jurisdiction which permits a judge to change his or her order between the handing down of the judgment and the subsequent sealing of the order. But in most civil cases, the latter is an administrative function, and it would be wrong in principle to allow parties carte blanche to take advantage of an administrative delay to go back over the judgment or order and reargue the case before it is sealed. Hence it is a jurisdiction which needs to be carefully patrolled.”

In effect, it may mean that it is possible to dismiss an application to reconsider a judgment, on paper in a summary fashion:

32. This means that, on receipt of an application by a party to reconsider a final judgment and/or order before the order has been sealed, a judge should not start from anything like neutrality or evenly balanced scales. It will often be a useful mental discipline, reflective of the strength of the finality principle, for the judge to ask herself whether the application should even be entertained at all before troubling the other party with it or giving directions for a hearing. It may be a perfectly appropriate judicial response just to refuse the application in limine after it has been received and read, if there is no real prospect that the application could succeed. Judges should not re-open proceedings just to allow debate on the point if it is already clear that the judgment or order should not be re-opened. That would defeat the Overriding Objective in the CPR that cases be decided “justly” and “at proportionate cost”.

What sort of factors can outweigh the finality principle?

35. The weight to be given to the finality principle will inevitably vary, depending in particular upon the nature of the order already made, the type of hearing at the end of which it was made and the type of proceedings in which it was made. Leaving aside orders made on appeal, which lie outside the scope of this appeal and have already attracted their own jurisprudence (see, in particular, Taylor v Lawrence [2002] EWCA Civ 90; [2003] QB 528 and what is now CPR Part 52.30), finality is likely to be at its highest importance in relation to orders made at the end of a full trial. But other kinds of final order, which end the proceedings at first instance, will attract the finality principle to almost as great a degree. Case management and interim orders lie towards the other end of the scale, and indeed many reserve liberty to the parties to apply to vary or discharge the order, even after it has been sealed. But the finality principle cuts in, as Coulson LJ said, when the order is made, not merely when it is sealed. After the order is sealed, the finality principle applies in a more absolute way, to put it beyond challenge in the court which made it, subject to any liberty to apply in the order, the application of the power in CPR Part 3.1(7) to vary or revoke it and the slip rule.

The Supreme Court deprecated the use of particular terminology, to reflect the weight to be given to the finality principle when making a decision whether to reconsider a judgment or not:

36. There is unlikely to be any particular magic in the word or phrase chosen to reflect the weight attributable to the finality principle in any decision whether to re-open a judgment and/or order before the order has been sealed, nor (which is the reverse of the coin) to describe the weight of the factor or factors which will be needed to prevail over the desirable adherence to finality. Although still in use in cases about reopening orders made on appeal under the Taylor v Lawrence jurisdiction and in the text of CPR Part 52.30(1) itself, the phrase “exceptional circumstances” has been subject to criticism in a variety of areas: see, eg, Lawrence v Fen Tigers Ltd [2014] UKSC 13; [2014] AC 822, para 119 (Lord Neuberger of Abbotsbury), referring to the judgment of this court in Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104, at para 51 (where the appropriateness of a test to depart from a standard position only in “very exceptional cases” was doubted); and, in the present context, Robinson v Fernsby [2003] EWCA Civ 1820, paras 94 (May LJ) and 120 (Peter Gibson LJ). Outside particular contexts where the ordinary outcome is specified to a high degree, the phrase fails to encapsulate anything other than unusualness with any useful precision. The fact that something is unusual or even very rare says little or nothing about its weight. “Strong”, “weighty” or “compelling” are somewhat better, but still do not provide a definitive bright-line test.

Cases involving the Barrel jurisdiction are few and far between: I can recall two of them in the course of the last 25 years. But when the point arises, it can mean snatching defeat out of the jaws of victory for one side or the other and has corresponding importance.

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