ON APPEAL FROM THE LUTON COUNTY COURT
DISTRICT JUDGE WILDING
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ETHERTON
LORD JUSTICE LEWISON
||Appellant / Claimant
|- and -
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|Respondent / Defendant
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Mr Paul Joseph (instructed by Plexus Law) for the Respondent / Defendant
Hearing dates : Wednesday 23rd November 2011
Crown Copyright ©
Lord Justice Rix:
"A power of the court under these Rules to make an order includes a power to vary or revoke the order."
"(1) When it has allocated a claim to a track, the court will serve notice of allocation on every party."
"The court may subsequently re-allocate a claim to a different track."
"(1) Part 27 (small claims) and Part 46 (fast track trial costs) contain special rules about –
(a) liability for costs;
(b) the amount of costs which the court may award; and
(c) the procedure for assessing costs.
(2) Once a claim is allocated to a particular track, those special rules shall apply to the period before, as well as after, allocation except where the court or a practice direction provides otherwise."
"(1) Any costs orders made before a claim is allocated will not be affected by allocation.
(2) Where –
(a) a claim is allocated to a track; and
(b) the court subsequently re-allocates that claim to a different track,
then, unless the court orders otherwise, any special rules about costs applying –
(i) to the first track, will apply to the claim up to the date or reallocation; and
(ii) to the second track, will apply from the date of reallocation.
(Part 26 deals with the allocation and reallocation of claims between tracks.)
"16.1 This paragraph applies where the court is about to make an order to re-allocate a claim from the small claims track to another track.
16.2 Before making the order to re-allocate the claim, the court must decide whether any party is to pay costs to any other down to the date of the order to re-allocate in accordance with the rules contained in part 27 (The Small Claims Track).
16.3 If it decides to make such an order about costs, the court will make a summary assessment of those costs in accordance with that Part."
The background facts
"The important point for the purposes of this application is that the court (and for that matter the parties) did not intend to create a situation whereby costs incurred prior to 11 December 2008 were to be treated other than as fast track costs. On any objective view, where the parties had agreed that the case should be allocated to the fast track and where the case only ended up on the small claims track (for just 6 weeks) by reason of (with respect) mistaken judicial assessment of its value the clear intention of the parties and the court was to treat all costs as though the mistaken allocation had never taken place."
The defendant filed no evidence.
The judgment of DJ Wilding
"It can be seen that neither party made any submission that I should make any different order about costs and that no one had in mind CPR 44.9, 44.11, or the PD.
It is clear that there is no new evidence before me today than was before me at the hearing on the 11th December 2009 [sic] and the only basis on which the application could succeed is in respect of additional argument today that was not before me on the 11th December 2009 [sic]…
It seems that in this case I must consider if argument alone is enough to provide me with jurisdiction to vary my earlier order under CPR 3.1(7)…"
"I have highlighted a part of the decision as in my judgment this is the right test to apply in circumstances where there has been a failure by the parties to alert the court to mandatory rules that it should have considered, but did not do so by reason of an oversight on the part of both of the parties and it has to be said, in this instance by me, the court…In asking the question in this case "should the costs order have been made in the first place knowing what is now known?" I would answer that by saying that it would not, if I had been alerted to the relevant rules, I would have been bound to consider the issue of costs on reallocation…
It seems to me therefore that I should address the issue of costs afresh as at the date of reallocation.
In my judgment an order for costs as sought by Mr Neale in his application would have been the order that I would have made. There has been no argument to the contrary before me on that point.
I shall therefore amend my order…"
The judgment of HHJ Elly
"I do not think the District Judge had the jurisdiction to grant the application in circumstances where what he is being asked to do is to revisit the decision where the parties had, or one of them, had failed to appreciate the consequences of that decision. I am afraid that the consequences are very clear in the practice rules and I think it is trite law to say that people are taken to understand what the law is but I do not think it is quite so trite when it comes to expecting solicitors working in particular fields to understand what the practice rules are."
"It seems to me that the only power available to me on this application is that contained in CPR Part 3.1(7), which enables the Court to vary or revoke an order. This is not confined to purely procedural orders and there is no real guidance in the White Book as to the possible limits of the jurisdiction. Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR Part 3.1(7) is exercisable, it seems to me that, for the High Court to revisit one of its earlier orders, the Applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him. The latter type of case would include, for example, a case of material non-disclosure on an application for an injunction. If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done, in my judgment, in the context of an appeal. Similarly it is not, I think, open to a party to the earlier application to seek in effect to re-argue that application by relying on submissions and evidence which were available to him at the time of the earlier hearing, but which, for whatever reason, he or his legal representatives chose not to deploy."
" We endorse that approach. We agree that the power given by CPR r.3.1(7) cannot be used simply as an equivalent to an appeal against an order with which the applicant is dissatisfied. The circumstances outlined by Patten J are the only ones in which the power to revoke or vary an order already made should be exercised under rule 3.1(7)."
" The possibility of recourse to CPR r 3.1(7) remains to be considered. As we have said earlier, this rule gives a very general power to vary or revoke an order. It appears to be unfettered. But it is a wrong exercise of this power to vary or revoke an order where there has been no material change of circumstances since the earlier order was made and/or no material is brought to the attention of the second court which was not brought to the attention of the first. A party who unsuccessfully deploys all his material before a court should not be allowed to have a second bite of the cherry merely because he failed to succeed on the first occasion…
 In short, therefore, the jurisdiction to vary or revoke an order under CPR r 3.1(7) should not normally be exercised unless the applicant is able to place material before the court, whether in the form of evidence or argument, which was not placed before the court on the earlier occasion."
" The basis of that jurisprudence is that the jurisdiction under order 3.1(7) is not a substitute for an appeal. There must be additional material before the court in the form of evidence or, possibly, argument. I would reserve the issue of whether additional argument in itself is enough to attract the jurisdiction of rule 3.1(7), but the general thrust of Collier is that the case before the court before which rule 3.1(7) is moved must be essentially different from one of simple error that could be righted on appeal. As was pointed out in the course of argument, it would be striking if, taking the words of Patten J literally, new facts could lead to rule 3.1(7) being applied, but that did not apply to a case such as the present, where not new facts but a completely new understanding of the nature of the Master's order was before the judge."
"[The master] made an order intending to keep that issue live, but the form of his order frustrated his intention. It was open to the judge to hold that since the application should never have been made in that form, it could be set aside. That is not to usurp the power of the Court of Appeal, but rather to correct a fundamental procedural error" (at ).
" There is scant authority upon rule 3.1(7) but such as exists is unanimous in holding that it cannot constitute a power in a judge to hear an appeal from himself in respect of a final order. Neuberger J said as much in Customs and Excise Comrs v Anchor Foods (No 2) The Times 28 September 1999. So did Patten J in Lloyds Investment (Scandinavia) Ltd v. Ager-Hanssen  EWHC 1740 (Ch). His general approach was approved by this court, in the context of case management decisions, in Collier v Williams  1 WLR 1945. I agree that in its terms the rule is not expressly confined to procedural orders. Like Patten J in the Ager-Hanssen case  EWHC 1740 I would not attempt any exhaustive classification of the circumstances in which it may be proper to invoke it. I am however in no doubt that CPR r 3.1(7) cannot bear the weight which Mr Grime's argument seeks to place upon it. If it could, it would come close to permitting any party to ask any judge to review his own decision and, in effect, to hear an appeal from himself, on the basis of some subsequent event. It would certainly permit any party to ask the judge to review his own decision when it is not suggested that he made any error. It may well be that, in the context of essentially case management decisions, the grounds for invoking the rule will generally fall into one or other of the two categories of (i) erroneous information at the time of the original order or (ii) subsequent event destroying the basis on which it was made. The exigencies of case management may well call for a variation in planning from time to time in the light of developments. There may possibly be examples of non-procedural but continuing orders which may call for revocation or variation as they continue – an interlocutory injunction may be one. But it does not follow that wherever one or other of the two assertions mentioned (erroneous information and subsequent event) can be made, then any party can return to the trial judge and ask him to reopen any decision. In particular, it does not follow, I have no doubt, where the judge's order is a final one disposing of the case, whether in whole or part. And it especially does not apply where the order is founded upon a settlement agreed between the parties after the most detailed and highly skilled advice. The interests of justice, and of litigants generally, require that a final order remains such unless proper grounds for appeal exist."
" Leaving aside default judgments, with their self-contained regime for setting aside, I consider that a line has to be drawn between orders for which revocation may be sought under CPR 3.1(7) upon the alternative grounds first identified in Lloyds Investment v Ager-Hanssen and approved in Collier v. Williams  1 All ER 991 on the one hand, and final orders, to which the public interest in finality applies, on the other. I consider that orders made by way of judgment on admissions fall clearly within the second of those categories. Once a party has admitted a claim, and judgment has been given against him on that claim, the other party is in principle entitled to assume that, barring any appeal, there is an end to the matter.
 It is unnecessary for me to conclude whether exceptional circumstances may none the less justify the revocation of a final order within that second category, still less to prescribe in advance what those circumstances might be…
 Having concluded that the Lloyds Investment v Ager-Hanssen analysis is inapplicable in the present circumstances, it is also unnecessary for me to resolve the apparent tension between Patten J's dictum that a party will be excluded from seeking revocation of an order where he has chosen not to present certain materials, and Morgan J's analysis in Simms v Carr  EWHC 1030 (Ch) that a party will be precluded merely because those materials were available for use, regardless whether their non-use was a matter of conscious choice. Had it been necessary, I would have concluded that whereas a conscious choice not to deploy relevant material (whether evidence or argument) would generally present an almost insuperable barrier to an applicant for revocation under CPR 3.1(7), the failure to do so, otherwise than through conscious choice, for example because of the absence of legal representation at the material time, would be a relevant negative factor against the exercise of discretion, but by no means an insuperable hurdle, if other relevant considerations militated in favour of exercise of the discretion."
(i) Despite occasional references to a possible distinction between jurisdiction and discretion in the operation of CPR 3.1(7), there is in all probability no line to be drawn between the two. The rule is apparently 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. Whether that curtailment goes even further in the case of a final order does not arise in this appeal.
(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, however, 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) misstated.
(iii) It would be dangerous to treat the statement of these primary circumstances, originating with Patten J and approved in this court, as though it were a statute. That is not how jurisprudence operates, especially where there is a warning against the attempt at exhaustive definition.
(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, misstatement may include omission as well as positive misstatement, or concern argument as distinct from facts. In my judgment, this debate is likely ultimately to be a matter for the exercise of discretion in the circumstances of each case.
(v) Similarly, questions may arise as to whether the misstatement (or omission) is conscious or unconscious; and whether the facts (or arguments) were known or unknown, knowable or unknowable. These, as it seems to me, are also factors going to discretion: but 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 must be still more strongly the case where the decision not to mention them is conscious or deliberate.
(vi) Edwards v. Golding is 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 itself 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 above suggest that the successful invocation of the rule is rare. 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.
Lord Justice Etherton :
Lord Justice Lewison :