Finality In Civil Litigation: Re-opening Orders And Judgments Made But Not Yet Sealed

• Published date: 18 August 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Civil Law
• Law Firm: Gatehouse Chambers
• Author: Mr Michael Maris and Amy Held

In the recent case of AIC Ltd v Federal Airports Authority of Nigeria [2022] UKSC 16, the UKSC considered an issue of wide-ranging relevance in civil proceedings: by what process and in accordance with what principles should a judge decide whether or not to exercise the power to re-open a judgment or order delivered in open court, but before the formal written minute of the order has been sealed? The case is of considerable significance because the question may arise at all stages of civil litigation, from interim and case management hearings, to final orders made at the end of a trial and even to orders made (but not yet sealed) on appeal. Read our case comment below to see whether the UKSC adopted the two-stage approach formulated by the Court of Appeal in the case.

Background

This case raised an issue of wide-ranging relevance in civil proceedings: by what process and in accordance with what principles should a judge decide whether or not to exercise the power to re-open a judgment or order delivered in open court, but before the formal written minute of the order has been sealed?

The underlying context in which the issue arose was an application to enforce a Nigerian arbitral award of US$48.13 million plus interest dated 1 June 2010 ('the Award') under ss 66 and 101 of the Arbitration Act 1996. The Respondent ('AIC') issued its application on 10 January 2019 ex parte, and an Order was made on 28 February 2019 without a hearing granting AIC permission to enforce the Award, with permission to the Appellant ('FAAN') to apply to set it aside within 22 days after service ('the Without Notice Order').

FAAN did so apply on the basis that its long-running challenge to the award in the Nigerian courts remained pending, and AIC made a cross-application for security. Accordingly, Veronique Buehrlen QC ('the Judge') set aside the Without Notice Order and adjourned AIC's enforcement claim pending the outcome of the Nigerian proceedings on condition that FAAN provide security in the sum of US$24.06 million in a form to be agreed. AIC obtained a further Order on 17 September 2018 that the security should be provided by bank guarantee ("the Guarantee") with permission to AIC to apply to enforce the Award if the Guarantee was not forthcoming by 29 October 2019.

FAAN subsequently applied for and obtained extensions of time for the provision of the Guarantee. The present appeal arose from FAAN's application of 14 November 2019 for a further extension of time until 5 December 2019 and AIC's cross-application for permission to enforce the Award.

At the time of the hearing before the Judge in the early afternoon of 6 December 2019, the Guarantee was still not forthcoming; leading counsel for FAAN had therefore conceded he could not properly seek a further extension of time nor oppose...