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CPR Rule 3.1(7) and varying an order granting Judgment by consent

CPR 3.1(7) gives the Court a power to vary or revoke an order. The power is used sparingly when the order is ‘final’ ie when it determines between the parties the issues which are the subject matter of the litigation.

In a case where Judgment is entered by consent can the court vary that final order under CPR 3.1(7) where new evidence has come to light? This was the issue before Leggatt J in the case of Simmons v City Hospitals Sunderland NHS [2016] EWHC 2593 (QB).

In this medical negligence claim C claimed D’s hospital staff failed to promptly diagnose her condition of necrotising fasciitis following an emergency caesarean section and that this delay led to the development of more serious injuries. In its Defence D admitted negligence in failing to make a timely diagnosis and that this led to some injury but denied causing C’s more serious medical ailments.

Judgment was entered by consent based on D’s admissions in the Defence. A few months later D held a conference with some medical experts. They contended the admissions in the Defence should not have been made because C did not in fact suffer from necrotising fasciitis. D therefore applied to vary the final order under CPR 3.1(7) relying on the newly obtained medical evidence.

In considering the application Leggatt J held that CPR 3.1(7) should not be used to circumnavigate the principle that final orders are intended to be final. Instead a party wishing to challenge a final order should ordinarily do so by appeal.

Nonetheless the application was granted. It was relevant that the litigation was still at an early stage and that the admissions D sought to withdraw were inextricably intertwined with the remaining issues in dispute. In coming to his decision the Judge considered both Ladd v Marshall [1954] 1 WLR 1489 concerning the admissibility of fresh evidence on appeal and Atkins v Cooperative Group Limited [2016] EWHC 80 (QB) involving an appeal brought from an earlier Judgment by consent. It therefore seemingly made little practical difference that the application was made under CPR 3.1(7) instead of by way of appeal. 

Vaughan Jacob / 17th Feb 2017


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