News

Court of Appeal rules on jurisdiction to vary or revoke an order of the court
17 May 2012

Mark James appeared before the Court of Appeal in a dispute about whether an interim order could be varied. In Tibbles v SIG plc[2012] EWCA Civ 518, a low value personal injury claim was mistakenly allocated to the small claims track. On the claimant's application the District Judge reallocated it to the fast track. The claim went to trial and the claimant obtained judgment and an order for costs. In the detailed assessment proceedings the defendant took the point that the effect of CPR r. 47.11 was that no costs were recoverable prior to the reallocation. As some £20,000 worth of costs had been incurred prior to reallocation, the claimant applied under CPR r. 3.1(7) to vary the order made on reallocation so as to specify that all the costs should be treated as fast track costs. The District Judge granted the application. The Circuit Judge and the Court of Appeal both held that he was wrong to have done so. The Court of Appeal held that the application had been made too late and would cause prejudice to the defendant if granted. The court reviewed the extensive authorities on CPR r. 3.1(7). It concluded that, while the court had jurisdiction to make the order sought, "such is the interest of justice in the finality of the court's orders that it ought normally to take something out of the ordinary to lead to a variation or revocation of an order, especially in the absence of a change of circumstances in an interlocutory situation." The position would have been different had the application been made promptly. Guidance that had previously been applied rigidly (such as whether relevant facts were known or unknown, knowable or unknowable) was said to be matters that went to the exercise of discretion. This decision is likely to guide courts where any application is made to vary or set aside an earlier order of the court.