13 January 2015Print This Post

“No proper justification” for challenge based on draft judgment

Judgments: until approved, they are subject to change

Judgments: until approved, they are subject to change

There was “no proper justification” for a claimant seeking to reopen an issue based on the circulation of a draft judgment, the High Court has ruled.

Judge Keyser QC, sitting as a judge of the High Court, said there was “no doubt” that the court had the power to reconsider and alter the draft judgment.

He said that, given the absence of a sealed order, the court retained the power “to alter its reasoning or its conclusions”.

Ruling in a complex professional negligence action brought against accountants Baker Tilly, Judge Keyser went on: “On the one hand, the court will not wish to hand down a judgment if it has come to the view that the judgment would do injustice as between the parties.

“On the other hand, the point has repeatedly been emphasised that the practice of providing draft judgments is intended to facilitate the avoidance of errors of typography and detail.

“It is not intended to provide an opportunity for the parties to reargue points on which they have lost or to seek to adduce new evidence to bolster cases that can now be seen to have been inadequately supported at trial.”

Judge Keyser said there might be “some degree of tension” between the two different considerations, but not in the case before him.

He said “no proper justification” had been made by the claimant, Altus Group (UK) Limited, a real estate consultancy based in Canada, for “seeking to reopen” the issue of causation after circulation of the draft judgment.

Delivering judgment in Altus Group (UK) Limited v Baker Tilly Tax and Advisory Services [2015] EWHC 12 (Ch), the judge added that if it was “intended to suggest that my draft judgment was prepared on the basis of a mistake of fact”, the suggestion was “incorrect”.

Altus argued that, if it had been properly advised on the Corporation Tax Act 2009, it would have implemented a restructuring which would have reduced its tax liabilities.

Baker Tilly admitted that it was in breach of duty, but argued that even if the restructuring proposal had been implemented, it would have been “ineffective as a matter of law for purposes of tax mitigation and would have been successfully challenged by HMRC”.

Judge Keyser rejected the claim, on the grounds that Altus had not “proved on the balance of probabilities” it would have carried out the restructuring.

By Nick Hilborne

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