BANK OF INDIA v. BHAGWANDAS KEWALRAM MURJANI AND OTHERS

Headnote

    Discretion of a judge to recall and change a judgment or order orally pronounced but not perfected considered.

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J U D G M E N T

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Kempster, JA:

1. We now give judgment in Appeals Nos 76, 77 and 93 of 1989; at this stage pursued only by the corporate defendants other than Murjani Industries (HK) Ltd. Having earlier this morning given judgment in relation to the Bank's appeals, which were Nos 70, 71 and 95 of 1989, we are entitled to exercise a degree of economy as regards the material facts.

2. On 27 April 1989, having given summary judgment in the Bank's favour late in the day, Barnett J was invited to stay execution. He acceded to that application in general terms. The following day, upon the matter being referred to him again, he directed that his judgment and order of the previous day should not be drawn up until he had heard further argument. On 3 May the parties came before the judge again pursuant to summonses and Mr Tang, on behalf of the bank, successfully invited him to modify the generality of his order for a stay by excepting from its terms any application for a Mareva injunction or for a prohibition order. We are currently only concerned with the Mareva aspect of the matter. It is contended on behalf of the corporate defendants that, having reached and pronounced a decision on 27 April, the circumstances did not warrant the judge's further consideration and his subsequent amendment of that earlier decision. We need not repeat our comments on the propriety of a succession of orders.

3. The substantive law appears to have been set forth in succinct terms by Kay J in In re ROBERTS [1887] WN 231 :

".... where an order had not been drawn up, whether it were an order made in chambers or in Court, the judge had a right, if something was brought to his attention which he had not sufficiently considered, to stay the drawing up of the order and rehear the matter before making a final order."

To like effect the judgment of Jenkins LJ in In Re Harrison's Share [1955] 1 Ch 260 particulary at p 276 :

"We think that an order pronounced by a judge, can always be withdrawn, or altered or modified by him, until it is drawn up, passed and entered."

At p 279 he said that what was found by Lord Westbury LC:

"does not seem to us to involve the proposition contended for, that after the words have passed his lips, and before the order is perfected, a judge who has in his belief delivered an erroneous judgment, has no power to recall it."

Finally at pp 283 and 284:

"When a judge pronounced his judgment he retains control over the case until the order giving effect to his judgment is formally completed. This control must be used in accordance with his discretion exercised judicially and not capriciously."

Applying the law to the present case we have to determine whether anything done by the trial judge can be categorised as capricious so as to entitle us to interfere with the exercise of his undoubted discretion to reconsider the circumstances and nature of his order for a stay, before it had been drawn up in accordance with the principles, mentioned this morning, of Hadmor Productions v. Hamilton [1983] AC 191.

4. Since it is not suggested that the defendants had acted to their detriment or prejudice by reason of the general terms in which, following less than exhaustive submission, the judge orally expressed his orders for a stay on 27 April it was, in my view, right for Barnett J to allow himself to be addressed at greater length on the possible effects and implication of the order which he had orally pronounced. We are not entitled to interfere with the exercise of his discretion to hear further argument and to modify an orally expressed order in consequence.

5. I would dismiss these appeals.

Clough, JA :

6. I agree and there is nothing which I can usefully add.

Mortimer, J :

7. I also agree and will just add this. In relation to the floodgate argument advanced by Mr Rodway, it would indeed be undesirable if this judgment were used as an excuse to vary previous practice and if counsel were to seek at the end of judgments to re-open cases. There is no reason whatsoever why this should happen. The law which has been declared by this Court has been the same for at least the last hundred years in relation to recalling orders and there is no doubt that the good sense of the bar and the exercise of the judge's discretion will ensure that the previous practice continues.