Lords Hodge, Briggs, Sales, Hamblen and Leggatt. What should a judge do when, shortly after oral judgment but before a formal written minute of the order has been sealed, one of the parties asks the judge to reconsider the judgment and the order? While judge has power to do so at any time prior to sealing, what are the relevant principles to be applied?

The Supreme Court had, in Re L (Children) (Preliminary Finding: Power to Reverse) [2013] UKSC 8, said that the court must deal with the application by doing justice in accordance with the overriding objective, but that was a family case under the FPR in which the overriding objective emphasised the welfare of the children, and was a preliminary fact-finding on which decisions about placement of children were later to be taken. A distinction from other types of cases may be justified because ‘the consequences are so momentous for the child and for the whole family’ (Lady Hale giving judgment of the court at [41]). In contrast, this was commercial litigation under the CPR and there is a strong public interest in the finality of litigation in this context.

Held: The 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.’ [32]

Judges may refuse the application in limine if no real prospect of success.

The importance of finality will always be a weighty matter but the weight will 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:

‘The question is whether the factors favouring re-opening the order are, in combination, sufficient to overcome the deadweight of the finality principle on the other side of the scales, together with any other factors pointing towards leaving the original order in place.’ [39]

This evaluation does not require ‘slavish adherence to a two-stage process of analysis’ of the kind taken by the Court of Appeal, as this would ‘impose a straitjacket’ on flexible nature of judicial discretion.

‘There may be cases where (since the order already made is already enforceable) urgency requires an immediate inter partes hearing with notice to both sides for a decision to be taken, rather than a protective stay pending the conduct of a two-stage process.’

Editor’s Note: Readers may wish to consider the speech of Mostyn J to the Hong Kong Family Law Association in 2019, which discusses the limits of judicial discretion and contains a detailed discussion of the relevant case law.