Appealing a decision is rarely a step taken lightly; the process can be long, expensive and fraught with risk. Michelle Walton, Advocate, looks at what may sometimes present as an alternative.
When can you apply to vary or revoke an Order under CPR 3.1(7) rather than appealing the decision?
Under CPR 3.1 – The Court’s General Powers of Management – sub paragraph 7 provides that: ‘A power of the court under these Rules to make an order includes a power to vary or revoke the order’.
The notes to the White Book recognise that: ‘The interests of justice, and of litigants generally, require that a final order remains such unless there are proper grounds for an appeal, or unless there are exceptional grounds for varying or revoking it without an appeal’.
So, what counts as ‘exceptional grounds’? The High Court in Lloyds Investment (Scandinavia) Limited v Cristen Ager-Hanssen  EWHC 1740 set out the test that: “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”. This test has been approved in numerous Court of Appeal cases such as Tibbles v SIG plc (trading as Asphaltic Roofing Supplies)  EWCA Civ 518 and Edwards v Golding & Others  EWCA Civ 416.
In Tibbles a per curiam decision added: “There may be room within CPR 3.1(7) for a prompt recourse back to a court to deal with a matter which ought to have been dealt with in an order but which in genuine error was overlooked by the parties and the court and which the overriding objective of dealing with cases justly would favour giving proper consideration to on the materials before the court”.
What is made clear in the authorities is that this scenario would not include a position where a party had evidence available to him at the time of the earlier hearing, but which, for whatever reason, chose not to employ. The analogy of ‘having two bites of the cherry’ is referred to, therefore parties should not intentionally withhold evidence on the belief that if the decision does not go their way they can then disclose that evidence and apply for a revocation or variation under CPR 3.1(7).
An example of where the rule could apply is where a party beats its own Part 36 offer at trial or assessment, but due to errors in the briefs neither parties’ Counsel is aware of the Part 36 offer and so do not bring the same to the attention of the court. As such the Order does not contain the relevant Part 36 benefits to which the party beating its offer is entitled. Upon the existence of the Part 36 offer being realised, that party should be able to apply for the Order to be varied under CPR 3.1(7) as the court was innocently misled as to the factual position before it – being that a Part 36 offer had been beaten.
The fact that an Order is a final Order is irrelevant. It was confirmed in Lloyds Investment and Roult v North West Strategic Health Authority  1 WLR 487 that CPR 3.1(7) was not confined to purely procedural orders, and the notes to the White Book confirm that CPR 3.1(7) apply to final Orders. This rule is therefore a vital tool in avoiding the long and potentially costly process of an appeal in some cases.
What is also clear is that any application to vary or revoke under this rule must be made promptly. In Tibbles the application was refused as the application was delayed and would have caused ‘inevitable prejudice’ to the other side, providing: “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”.
This fits in with the interests of justice that parties should be able to rely on a final order, and that the more time which has passed since an Order, the more likely prejudice will be suffered if that Order is varied or revoked. If a substantial amount of time has passed a party is likely to be more successful applying for permission to appeal out of time rather than relying on CPR 3.1(7).
Where however there has been a genuine error in putting the factual position before the court, or where there has been a change in the circumstances upon which the decision was made, it may be the better option to rely on CPR 3.1(7) rather than having to go through the two hurdles of applying for permission to appeal (which may be refused) and then conducting the actual appeal (if permission is granted). Further, on appeal the court will usually not entertain new evidence, therefore if it is on this basis there is an issue with the Order, CPR 3.1(7) may be the best option. It is however an option that has to be considered in the context of the specific features of each case presenting.
There is no definitive or exhaustive list of what does or does not constitute ‘exceptional circumstances’ such as to justify revoking or varying an Order, however it appears that if the circumstances fit the Lloyds Investment test that should be sufficient, as long as the application is made swiftly before any substantial prejudice is suffered by the other side.
Michelle Walton is an Advocate at Victoria Square Chambers.
To contact her regarding any matter raised in this blog, please click here.
Victoria Square Chambers is a specialist national costs practice. It’s our mission to add value and opportunity to your business through Costs Advocacy, Costs Advice and Costs Mediation through our leading experts and advisers. To contact our knowledgeable team, please click here.