England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		HC 03 CO0992/HC 02 CO2548 Royal Courts of Justice Strand, London, WC2A 2LL
		11/11/2005

The Hon Mr Justice Lewison :

1. Ultraframe invite me to reconsider the ruling about costs that I made following the trial of these actions. It is common ground that:

i) I have jurisdiction to do so under the principles in Re Barrell Enterprises [1973] 1 WLR 19, as explained by the Court of Appeal in Robinson v. Bird [2003] EWCA Civ 1820; and

ii) That I should consider the application on paper.

2. I have read and considered written submissions on both sides.
3. In Robinson v Bird May LJ said at para 93:

"Once a judgment has been handed down or given, there are obvious reasons why the court should hesitate long and hard before making a material alteration to it. These reasons have been rehearsed in the cases to which I have referred and I need not elaborate them further. The cases also acknowledge that there may very occasionally be circumstances in which a judge not only can, but should make a material alteration in the interests of justice. There may for instance be a palpable error in the judgment and an alteration would save the parties the expense of an appeal. On the other hand, reopening contentious matters or permitting one or more of the parties to add to their case or make a new case should rarely be allowed. Any attempt to do this is likely to receive summary rejection in most cases. It will only very rarely be appropriate for parties to attempt to do so. This necessarily means that the court would only be persuaded to do so in exceptional circumstances, but that expression by itself is no more than a relatively uninformative label. It is not profitable to debate what it means in isolation from the facts of a particular case."

4. He added at para 98:

"I have indicated my view that there is a material distinction between a judgment that has been handed down or given and a draft judgment which has not yet been handed down. There is also, in my view, a significant difference between a case in which one or more of the parties want to persuade a reluctant judge to reconsider a draft judgment; and a case where the judge himself has decided that his draft judgment is wrong.."

5. This is a case in which:

i) Judgment on costs has already been given;

ii) Full submissions were made on each side;

iii) The application for reconsideration is initiated by Ultraframe, rather by my own decision that my judgment was wrong.

6. My judgment on costs was a discretionary decision; and (apart from the preliminary issues) treated issues of costs in the round. The overall effect of my ruling is that although the Burnden Defendants were overall winners in the litigation, I have reduced the costs award in their favour substantially. I did so by an overall deduction (or "end allowance") which applied to all the costs, including those costs on issues which were untainted by any findings of dishonesty; and to costs incurred after the making of Part 36 offers. Depending on what figures for costs one adopts, the overall deduction is in the region of £2.5 million, which is roughly equivalent to all the costs expended by them on the share conspiracy allegations.
7. Had I approached the question of costs in the compartmentalised manner advocated by Ultraframe, I might well have made a different overall deduction or "end allowance". That might or might not have led to a different overall result; but to unpick the reasoning process now would require complete reconsideration of my thought process.
8. So far as the question of the bank guarantee is concerned, this question was argued and I decided it.
9. I am not persuaded that I have made a "palpable error"; or that it is appropriate to re-open the judgment on costs that I delivered.
10. I therefore dismiss Ultraframe's application with costs, which I summarily assess at £1750.