HT-2020-000448 - [2024] EWHC 2025 (TCC)

Fecha: 01-Ago-2024

Section 1

This judgment deals with a number of consequential matters following the handing down of the substantive judgment in this matter (see [2024] EWHC 1185 (TCC) (‘the Judgment’). The Judgment ran to 242 pages and dealt with a very significant number of legal, factual and technical issues. The vast majority of both claims and counterclaims were dismissed. I concluded (at paragraph 821) that, subject to VAT arguments and any applicable interest:

(1)

The Claimant (‘TCS’) is entitled to:

(a)

Manpower costs (R1-D): £666,735.00

(b)

Non-Manpower costs (R1-D): £1,732,989.70

(c)

Volume Based Service Charge (‘VBSC’): £6,976,737.00

(2)

The Defendant (‘DBS’) is entitled to:

(a)

CCN041 £4,559,439.00

(b)

Barring Portal Defects (Snowbound) £8,270.00

I am grateful to the parties for their clear and efficient written submissions, and their succinct supplemental submissions as requested by the Court. This judgment should be read together with the facts and findings set out in the Judgment, details of which are not repeated here.

(1)

Correction of Judgment

Due to the availability of the parties and the Court, the consequentials hearing has taken place a number of months after the handing down of the Judgment. DBS, in its Skeleton Argument for the consequentials hearing, pointed out for the first time that it considered that an error existed in respect of the award of delay damages for the period prior to 7 September 2018. TCS responded explaining why it considered that there was no error.

Following oral submissions, and the handing down of a draft of this judgment, TCS then provided a two page note identified what it considered was an error in the original (and, as set out below, corrected) quantification of non-manpower (and manpower) costs.

If and to the extent that an error has been made, the Court has an unfettered jurisdiction to correct it at any time before the order giving effect to the Judgment is perfected by being sealed: In re L & anr (Children) [2013] UKSC 8; [2013] 1 WLR 634 at [16], [19], and [27]:

‘16. It has long been the law that a judge is entitled to reverse his decision at any time before his order is drawn up and perfected.

…

19.

Thus there is jurisdiction to change one’s mind up until the order is drawn up and perfected. Under CPR r 40.2(2)(b), an order is now perfected by being sealed by the court. There is no jurisdiction to change one’s mind thereafter unless the court has an express power to vary its own previous order. The proper route of challenge is by appeal. On any view, therefore, in the particular circumstances of this case, the judge did have power to change her mind. The question is whether she should have exercised it.

…

27.

This court is not bound by the Barrell case or by any of the previous cases to hold that there is any such limitation upon the acknowledged jurisdiction of the judge to revisit his own decision at any time up until his resulting order is perfected. I would agree with Clarke LJ in Stewart v Engel [2000] 1 WLR 2268, 2282 that his 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 a case where it is expected that they may do so before the order is formally drawn up…..Every case is going to depend upon its particular circumstances.’

The Order arising out of the Judgment has not been sealed. As set out below, I consider that DBS is correct and there is an erroneous internal inconsistency which affects the quantification of the damages awarded to TCS in respect of delay. It is open to me to correct the Judgment in this respect. In circumstances where there is no detrimental reliance on the part of TCS, it is obviously in the interests of justice that I do so. If the error had been pointed out in the draft judgment, I would have corrected it at that point, prior to handing down.

I consider that TCS is, however, incorrect and there is no error in the manner in which manpower and non-manpower costs have been approached. No correction is required.

I would only add that, notwithstanding the existence of discretion until the order giving effect to the Judgment is perfected by being sealed, it remains the case that parties should draw the Court’s attention to anything that it considers may amount to a substantive error capable of correction as soon as possible. An error of the type identified by DBS is readily distinguishable from a point on which a party simply disagrees and in respect of which it will, in the ordinary way, seek permission to appeal. It is perhaps unfortunate that these potential errors were not identified when the parties were provided with the judgment in draft before being handed down formally, but given the length and complexity of the Judgment it is understandable why this did not happen. The consequentials hearing was, due to the availability of the parties and the Court, not for some three months after the handing down of the Judgment. In such circumstances, it would have been far preferable if the points raised by the parties had been raised much sooner, not least because the circulation of the Judgment in relation to any points of interest increases as time goes by and a judgment should be corrected, if that is necessary, as soon as possible.