Applications to vary or revoke an order pursuant to Civil Procedure Rule 3.1(7)

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Does the court, pursuant to Civil Procedure Rule 3.1(7), have the power to vary or revoke an order which it has itself made? This was the question before the Court of Appeal in Tibbles v SIG Plc (trading as Asphaltic Roofing Supplies) [2012] EWCA Civ 518.

CPR 3.1 sets out the court’s general case management powers. CPR 3.1(7) specifically deals with the powers of the court to deal with an order and provides: ‘A power of the court under these rules to make an order includes a power to vary or revoke the order.’ The bone of contention in Tibbles was whether a district judge should, when reallocating a small-claims track case to the fast track, have made a special order to avoid the default operation of CPR 44.11 (costs following allocation and reallocation) where costs incurred prior to allocation would be dealt with under the small-claims track rules.

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On appeal, the claimant submitted that the district judge misled himself by failing to make a special order that costs prior to reallocation be dealt with according to fast-track rules and not small-claim track rules. The claimant argued that there was power under CPR 3.1(7) to vary the district judge’s order, and the district judge was correct in subsequently varying the order so that it dealt with costs on the fast track. The defendant counter-argued that the district judge was wrong to vary the order, and that on the first appeal the county court judge was right to have concluded that the district judge lacked jurisdiction under CPR 3.1(7) to vary his order.

On the particular facts of this case, the district judge was not referred, in particular, to the specific rules on costs as set out under CPR 44.11. Also, the claimant applied to have the order varied after trial and final judgment in his claim. It was only when the question of preallocation costs came to be debated as part of the detailed assessment of costs that the claimant applied to have the district judge’s original order varied.

Despite this, the district judge found that he possessed power to vary his earlier order. However, on first appeal the county court judge reversed the district judge’s findings and held that the jurisdiction of CPR 3.1(7) did not extend to the situation where the ­parties’ lawyers simply failed to look after their client’s interests in terms of applicable rules of civil procedure.

Summary of position

On further appeal, Rix LJ reviewed the jurisprudence surrounding CPR 3.1(7) and summarised the position thus: (i) The rule under CPR 3.1(7) is broad and unfettered, but considerations of finality, the undesirability of allowing litigants to have two bites at the cherry and the need to avoid undermining the concept of appeal, all push towards a principled curtailment of an otherwise apparently open discretion.

(ii) The cases all warn against an attempt at an exhaustive definition of the circumstances in which a principled exercise of the discretion may arise. Subject to that, Rix LJ noted that the jurisprudence has laid down firm guidance as to the primary circumstances in which the discretion may, as a matter of principle, be appropriately exercised, namely normally only: (a) where there has been a material change of circumstances since the order was made; or (b) where the facts on which the original decision was made were (innocently or otherwise) mis-stated.

(iii) It would be dangerous to treat the statement of these primary circumstances, originating with Patten J in Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen [2003] EWHC 1740 (Ch) and approved subsequently by the Court of Appeal, as though it were a statute.

(iv) Thus there is room for debate in any particular case as to whether and to what extent, in the context of principle (b) in (ii) above, mis-statement may include omission as well as positive mis-statement, or concern argument as distinct from facts.

(v) Similarly, questions may arise as to whether the mis-statement (or omission) is conscious or unconscious; and whether the facts (or arguments) were known or unknown, knowable or unknowable. These, Rix LJ noted, were also factors going to discretion. However, his lordship made clear that where the facts or arguments are known, or ought to have been known as at the time of the original order, it is unlikely that the order can be revisited, and that this would especially be the case where the decision not to mention them is conscious or deliberate.

(vi) Rix LJ explained that the case of Edwards v Golding [2007] EWCA Civ 416 was an example of the operation of the rule in a rather different circumstance, namely that of a manifest mistake on the part of the judge in the formulation of his order. It was plain in that case from the master’s judgment that he was seeking a disposition which would preserve the limitation point for future debate, but he did not realise that the form which his order took would not permit the realisation of his adjudicated and manifest intention.

(vii) The cases considered by Rix LJ (including Collier v Williams [2006] EWCA Civ 20; Roult v North West Strategic Health Authority [2009] EWCA Civ 444; and Simms v Carr [2008] EWHC 1030 (Ch)) suggest that the successful invocation of the rule is rare.

Rix LJ observed that: ‘"Exceptional" is a dangerous and sometimes misleading word. However, such is the interest of justice in the finality of a court’s orders that it ought normally to take something out of the ordinary to lead to variation or revocation of an order, especially in the absence of a change of circumstances in an interlocutory situation.’

Rix LJ also placed great emphasis upon the need for an applicant to act promptly if they wish to request that the court vary an order already made. Rix LJ held: ‘I emphasise however the word "prompt" which I have used above. The court would be unlikely to be prepared to assist an applicant once much time had gone by. With the passing of time is likely to come prejudice for a respondent who is entitled to go forward in reliance on the order that the court has made. Promptness in application is inherent in many of the rules of court: for instance in applying for an appeal, or in seeking relief against sanctions (see CPR 3.9(1)(b)). Indeed, the checklist within CPR 3.9(1) must be of general relevance, mutatis mutandis, as factors going to the exercise of any discretion to vary or revoke an order.’

Applying the above principles to the facts in Tibbles, Rix LJ found, inter alia, that the circumstances of the case actually mitigated against the exercise of the CPR 3.1(7) power. There was a very long delay in making the application to vary and this delay caused inevitable prejudice to the defendant. Further, there was no change of circumstances which would justify a variation of the order. In any event, the district judge was wrong to exercise his discretion and there was no new evidence from the claimant which would justify an exercise of that discretion.

Tibbles is significant for a number of reasons. It clarifies an area in civil procedure which, as Dame Janet Smith observed when granting permission to appeal in Tibbles, was causing difficulty. It should be noted that the courts will be extremely cautious in exercising their powers under CPR 3.1(7) and will take into account a wide range of factors when considering an application to vary or revoke an order.

In particular, the courts will seek to ascertain whether there has been a material change of circumstances since the order was made or where the facts on which the original decision was made were (innocently or otherwise) mis-stated. Finally, any application to vary must, as Rix LJ emphasised in Tibbles, be made promptly and any delay in doing so will not be met with any sympathy from the courts.

Masood Ahmed, Birmingham City University

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