CPR r. 3.1(7) provides: “A power of the court under these Rules to make an order includes a power to vary or revoke the order.”
In Tibbles v SIG Plc  EWCA Civ 518 the Court of Appeal provided guidance on its application. The primary circumstances in which the court’s discretion may be appropriately exercised are (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. Nevertheless, it was inappropriate to attempt an exhaustive definition of the circumstances in which a principled exercise of the discretion might arise. The authorities indicated that the successful invocation of the rule was rare. Such is the interest of justice in the finality of court orders that it ought normally to take something out of the ordinary to lead to variation/revocation of an order, especially in the absence of a change of circumstances in an interlocutory situation.
T had brought a personal injury claim against S. The claim was initially allocated to the small claims track but later reallocated to the fast track. T was awarded judgment at trial. On detailed assessment of his costs, S took the point that by reason of CPR r. 44.11 costs prior to reallocation were to be assessed subject to the small claims costs rules. T then applied under r. 3.1(7) to vary the order reallocating the claim to include the words “the costs incurred prior to today are to be treated as costs in the fast track.” The application was successful before the District Judge but his order was overturned on appeal. T’s appeal to the Court of Appeal was dismissed.
Rix LJ held that the question on an application under r. 3.1(7) was not merely what the right order ought to have been at the time of the original order, but what should be done at the time of the application to vary, bearing in mind any change of circumstance, any new evidence, any delay and any explanation offered for it, and especially any prejudice.
He concluded that T’s application could not succeed given, amongst other factors, the very long delay and the inevitable prejudice caused to S as a result.
Winston Jacob / 1st Jun 2012
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