It’s extremely rare that a court will have cause to revisit or revise a decision. However, in a small percentage of cases, a judge might be minded to revise a decision after it has been delivered. When and how is that possible under the law? This recent decision gives further guidance.

In 2013, the Supreme Court ruled on the circumstances in which a judge will be entitled to alter a decision after it has been announced. The judgment in L and B (Children) [2013] UKSC 8 makes clear that, when deciding whether or not to change a decision, a judge must consider the overriding objective of the court to deal with the case justly. This built on the principles established in the 1999 case of Re Blenheim (Restaurants) Ltd (No 3) - and signalled a move away from the earlier “exceptional circumstances” test, which had been good law for some forty years since the decision in Re Barrell Enterprises [1973] 1 WLR 19.

The issue was further considered by the April 2015 judgment in Heron Bros Ltd v Central Bedfordshire Council (No 2) [2015] EWHC 1009 (TCC). Around three hours after Edwards-Stuart J had handed down a decision on a strike out application, the defendant made an application for him to revisit that judgment on the basis that there was a further point to raise which was relevant to the exercise of his discretion.

In considering whether or not it would be appropriate to revisit his decision, the judge noted that this was not a case where the defendant had come into possession of new material after judgment was handed down. The court had circulated a draft judgment on 9 March and the parties had provided comments on that draft by 18 March. The additional points put forward by the defendant after the announcement of the decision had been known to the defendant before the submission of its comments on the draft. The court considered that the existing law did not "sit easily" with a situation where a party knew the relevant facts (or law) prior to the announcement of a decision, but failed to appreciate the consequences. In light of that, the judge decided that a "post-judgment second thought" based on material already known to the applicant, would not be sufficient grounds to warrant a reconsideration.

The court instead proposed that a three-stage approach should be applied when considering applications to revisit a judgment:

  • first, a consideration of whether the application should be heard at all;
  • second, whether the point raised is reasonably arguable; and,
  • third, if reasonably arguable, allow the point to be fully argued or dealt with on paper.