The recent case of Heron Bros Ltd v Central Bedfordshire Council (No 2) [2015] EWHC 1009 (TCC) considered the extent to which a court may exercise its discretion and revisit its judgment in the light of a new point.

The defendant council had applied to strike out a public procurement challenge brought by the claimant construction company, on the basis that the claim form was not served within seven days of issue, as specified in the service of the claim form under regulation 47F(1) of the Public Contracts Regulations 2006. That application was refused by Edwards-Stuart J in the Technology and Construction Court.

After the judgment was handed down, the defendant requested that the court revisit it in the light of the fact that those representing the claimant, QG, were not authorised to conduct litigation.

The first point for the court to consider was whether it should accede to the application in principle. The defendant argued that the claimant had, two days before the judgment had been handed down, admitted that QG was not authorised to conduct litigation, but was licensed only to instruct the bar for advice and advocacy services. Therefore, the defendant submitted, the claimant should not be entitled to its costs from the defendant.

However, the defendant did, as Edwards-Stuart J observed, suspect the true position from the outset and this was not a case where the defendant had come into possession of new material following the handing down of the judgment.

Turning to the authorities, Edwards-Stuart J noted the decision of the Supreme Court in Re L and Another [2013] 1 WLR 634. The case concerned a preliminary judgment in care proceedings in which the judge concluded that the father was the perpetrator of injuries sustained by the child.

About two months later, before the order giving effect to the judgment had been sealed, the judge issued a ‘perfected judgment’ (that is, when it is sealed by the court by printing the court stamp on the document) in which she said that on further consideration of the evidence she was unable to find to the requisite standard which of the parents had injured the child.

The Supreme Court, reversing the CoA, after noting that it had long been the law that a judge is entitled to reverse his decision at any time before the order giving effect to that judgment is drawn up and perfected, held that the judge was entitled to change her mind since no order had been sealed.

Lady Hale, giving the only judgment of the court, said: ‘I would agree with Clarke LJ in Stewart v Engel [2000] 1 WLR 2268, 2282, that [the judge’s] overriding objective must be to deal with the case justly. A relevant factor must be whether any party has acted upon the decision to his detriment, especially in the case where it is expected that they may do so before the order is formally drawn up. On the other hand, in Re Blenheim Leisure (Restaurants) Ltd, Neuberger J gave some examples of cases where it might be just to revisit the earlier decision. But these are only examples. A carefully considered change of mind can be sufficient. Every case [will] depend upon its… circumstances.’

These were examples of situations, Edwards-Stuart J observed, where either something has obviously gone wrong or relevant material was overlooked through no fault of the parties. This did not sit easily with the situation where, as in the present case, a party knows the relevant facts (or, where appropriate, the relevant law) but simply fails to appreciate a potential legal consequence of the matters of which it is aware.

For a court to revisit its judgment there had to be ‘something more than a post-judgment second thought based on material that was already in play. If it were otherwise, any fresh point that occurred to a party following the handing down of a judgment would entitle the party to require the court to hear further submissions with a view to revisiting the judgment. That would then become the rule rather than the exception.’

Should the discretion be exercised in this case? The judge held that this type of application should be approached in the following three stages:

1. The court should decide whether the application should be entertained.

2. If it is appropriate to consider the application, the court should consider whether the point raised by the application is reasonably arguable. If it is not, the application should be dismissed. If it is, then

3. It is for the court to give directions for a short oral hearing to enable the point to be argued fully (unless the parties have agreed that it can be dealt with on paper).

The judge concluded that no material had come to light that was not known before the judgment was handed down. The defendants had suspected that QG may not be authorised to conduct litigation, and the defendant had ample opportunity to raise the issues at various intervals before the judgment was handed down. Although the judge dismissed the defendant’s request, he proceeded to consider the question of whether the new point raised by the defendant was reasonably arguable.

The Legal Services Act 2007 provides that ‘reserved legal activity’ can only be carried out by a person authorised to do so, which QG was not. The conduct of litigation is a reserved legal activity. By schedule 2 of the act, the conduct of litigation is defined as: ‘(a) the issuing of proceedings before any court in England and Wales; (b) the commencement, prosecution and defence of such proceedings; and (c) the performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions).’

In André Agassi v Robinson [2005] EWCA Civ 1507 (a decision under the Solicitors Act 1974) in which the definition of the conduct of litigation was the same as it is under the 2007 act, Dyson LJ, giving judgment, said: ‘The word “ancillary” indicates that it is not all functions in relation to proceedings that are comprised in the “right to conduct litigation”. The usual meaning of “ancillary” is “subordinate”.

‘A clue to what was intended lies in the words in brackets “(such as entering appearances to actions)”. These words show that it must have been intended that the ancillary functions would be formal steps required in the conduct of litigation. These would include drawing or preparing instruments within the meaning of section 22 of the 1974 act and other formal steps. It is not necessary for the purposes of this case to decide the precise parameters of the definition of “the right to conduct litigation”.

‘It is unfortunate that this important definition is so unclear. But because there are potential penal implications, its very obscurity means that the words should be construed narrowly. Suffice it to say that we do not see how the giving of legal advice in connection with court proceedings can come within the definition. In our view, even if, as the Law Society submits, correspondence with the opposing party is in a general sense “an integral part of the conduct of litigation”, that does not make it an “ancillary function” for the purposes of section 28.’

There was no reason to construe the definition of the conduct of litigation as extending to any activities that take place prior to the issue of proceedings and which do not involve any contact with the court. For example, advising on the merits of starting proceedings or drafting particulars of claim. In the light of the observations by Dyson LJ, there was nothing unlawful in QG’s letter to the defendant in which it enclosed copies of the claim form and particulars of claim which had been sent to the court.

Furthermore, although the issued claim form which was served by QG on the defendant was unlawful, it was not the service of the issued claim form that was regularised by Edwards-Stuart J’s judgment. That judgment concluded that the service of the draft claim form on the defendant (that is, the claim form that had been sent to the court) constituted service under the regulations, albeit service that was irregular because the claim form enclosed with the letter had not been issued.

Thus, it would not be appropriate to have a further hearing to determine the application.

This case makes clear that the threshold to be met by a party requesting a court to revisit its judgment is high. This is welcome: it upholds the principle of finality of judgments, and accords with the principle of dealing with cases justly and at proportionate cost.

Masood Ahmed, University of Leicester