The High Court in the case of (1) Thomas Cook Tour Operations Ltd (2) Tourmajor Ltd v Louis Hotels SA  EWHC 2469 (QB) has refused to make any changes to a draft summary judgment on the grounds that it was not in the interests of justice to do so.
The Respondents (T) and the Applicants (L) are both companies operating within the leisure and tourism industry. T had issued a claim against L for breach of contract and applied for summary judgment. The court initially reserved its decision, but in July 2013 handed down a draft judgment giving summary judgment in favour of T and ordering L to make an interim payment of costs to T in the sum of £1 million.
Before the final judgment was handed down, L made an application to the court to reconsider the draft judgment based on the following arguments:
- The first instance court in Athens had since refused T’s application for a freezing order;
- Documentation had come into L’s possession which did not support T’s contention that they had incurred expenditure of over £5 million as a result of L’s breach of contract; and
- The way in which the draft judgment dealt with causation would prevent L from raising the argument that the operative loss had been caused by the acts of T’s employees rather than L’s breach of contract when it came to the assessment of damages.
The High Court upheld the draft judgment and refused to reconsider it before being passed down in its original form.
Swift J DBE commented that a judge’s power to amend or reverse a decision before the resultant order is drawn up is not limited to exceptional circumstances, and extended to situations where invited to reconsider a draft judgment before being handed down. However, Swift J DBE emphasised that this power must be made in accordance with the overriding objective of the CPR, namely that it is in the interests of justice to do so. Taking each argument in turn:
Swift J DBE held that the submission that the refusal of the freezing order by the Greek court acted as a bar to entering summary judgment in the English proceedings was wholly misconceived. He stated that it would undermine the whole purpose of the Regulation in question (44/2001 art. 31) if the outcome of an interim application in the court of one Member State impeded or inhibited the ability of the court with jurisdiction over the substantive claim to deal with that claim in an appropriate way.
Swift J DBE found that on the evidence it was appropriate to make an order for an interim payment of £1 million, notwithstanding the fact of the new documents that had come to light. As T’s overall loss was still likely to be well in excess of £1 million, Swift J DBE saw no reason to amend the draft judgment.
Causation and assessment of costs:
Swift J DBE held that the draft judgment had fully dealt with all arguments raised at the original hearing, and should therefore not be expanded further in relation to issues of causation. The question of whether each item of loss stemmed directly from L’s breach of contract was for the judge carrying out the assessment of damages.