Whose order is it anyway?

15/02/22

It often happens in litigation that a judge is called upon to apply an order or judgment made previously in the proceedings – for example, because one party alleges the other to be in breach. In such a case, how is the court to approach the construction of the order -  and does it make any difference if the judge applying the order or judgment is the judge who originally made it?

In Barrowfen Properties Limited v Patel [2022] EWHC 207 (Ch), Mr Justice Leech had to determine the scope of his own earlier judgment, reserving certain issues of quantum to a further hearing, and order, giving permission for evidence on the reserved matters, following an application by the defendant to strike out part of the evidence served by the claimant on the basis that it fell outside the scope of the matters reserved. In dismissing the application, and allowing the evidence to stand, the Judge rejected the defendants’ attempt to rely on the parties’ submissions at trial, instead applying the obiter view of the Court of Appeal in SDI Retail Services Ltd v Rangers Football Club Ltd [2021] EWCA Civ 790, that the meaning of an order “cannot depend in the slightest on whether or not the judge who made the order is the judge interpreting it” and that this meaning stood to be determined on the basis of the words used in the judgment and order. In the instant case, the wording of the judgment and order were broad enough to encompass the evidence submitted by the claimant and so there was no basis to refuse to admit it.

The judge further found in favour of the claimant’s application to amend its claim to include matters arising from its further evidence. In doing so he rejected the defendant’s argument that, because the amendment was sought post-trial, it was subject to the Barrell jurisdiction restricting amendments to exceptional cases. Rather, the Judge held that the Barrell jurisdiction was not engaged in circumstances where the Judge had expressly reserved issues for a further hearing.

The judgment is here