Court’s approach to reconsidering its own orders

30 November, 2020

On 26 November 2020 the Court of Appeal handed down judgment in AIC Ltd v Federal Airports Authority of Nigeria [2020] EWCA Civ 1585. The judgment arose in the context of enforcement of an arbitral award worth approximately US$140m by the date of judgment.  Reversing the High Court’s ruling, the Court of Appeal granted enforcement to the Appellant.

The Court of Appeal’s judgment sets out the approach a court should take when asked to reconsider the terms of its order in the period between pronouncement of its order in open court and the sealing of the order.

Giving judgment for the Court of Appeal, Lord Justice Coulson observed that the jurisdiction to reconsider a court order “needs to be carefully patrolled”. This is because the principle of finality is of fundamental public importance, and an order takes effect from the moment it is made by the court, not when it is sealed.

The approach to reconsideration applications set out by the Court of Appeal is as follows:

  • The court will first ask itself whether the application to reconsider should be entertained in principle: i.e. is there a reasonably arguable basis for the application? If the answer is ‘no’, then that is the end of the matter.
  • If the answer is ‘yes’, then it becomes an open-ended matter of discretion, to be exercised in accordance with the overriding objective, as to whether the order should be changed, or not.

When answering the first question, the court should be looking for a sufficiently compelling reason that may justify reconsideration; something which might outweigh the importance of finality and justify the opening up of a question or questions which, following the pronouncement of the order in open court, appeared to have been finally answered. While the categories of cases which would satisfy this first question is not closed, the court should instinctively be looking for something which has been missed or otherwise gone awry: a mistake or a fundamental misapprehension; a fundamental piece of evidence or a point of law that was overlooked.

While the Court of Appeal’s judgment was given in the context of an application for enforcement of an arbitral award, its application is of broader significance as it is applicable to any applications for reconsideration of court orders made in civil proceedings.

The Appellant, was represented by Paul Key QC, instructed by McDermott Will & Emery UK LLP.

A copy of the Judgment can be found here.