SETTING ASIDE AN ORDER ON COURT’S OWN INITIATIVE: A REDETERMINATION OF THE MATTER AND NOT SUBJECT TO TIBBLES PRINCIPLES

 THE TIBBLES CRITERIA 

In Tibbles v SIG Plc (t/a Asphaltic Roofing Supplies) [2012] EWCA Civ 518  the claimant was seeking, after being successful at trial, to vary an earlier order of a District Judge transferring the action from the small claims to the fast track.

The order transferring the action did not make any provision for the claimant to recover the costs prior to transfer. The claimant argued that the order transferring the action should have included provision for the costs incurred prior to transfer to be recoverable as if they were fast track costs. As it was the provisions of CPR 44.11 applied and, without a specific order, the pre-transfer costs were not recoverable.

THE DECISION IN TIBBLES

 The Court of Appeal rejected the argument that such an order could be readily granted. There was a detailed consideration of  the relevant principles and Lord Justice Rix stated:

(i)                 …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.

There were other factors to be considered:

•  Misstatement could include omission as well as positive statements.

• “… 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.”

• An order can be can be varied if there was a manifest mistake on the part of the judge. (Usually because the order was not having the effect intended by the judge). 

• An order to vary will be exceptional and rare. 

“… 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. “

THERE MAY BE ROOM FOR A PROMPT APPLICATION

“Thus it may well be that there is 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 parties and the court) and which the purposes behind the overriding objective, above all the interests of justice and the efficient management of litigation, would favour giving proper consideration to on the materials already before the court. This would not be a second consideration of something which had already been considered once (as would typically arise in a change of circumstances situation), but would be giving consideration to something for the first time. “ 

However it has to be observed that it will extremely rare for a party, in default, to be able to make a “prompt” application.

HOWEVER THE APPLICATION MUST BE PROMPT 

“ 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”