CL-2022-000249 - [2025] EWHC 1156 (Comm)

CPR 25.20(6) provides that the Court “may adjust any interim payment” and “in particular” may “vary or discharge the order for the interim payment” (sub-rule (b)).

As the Claimants pointed out, the rules do not give any further guidance as to how this power to vary should be exercised, but the importance of finality means that the power cannot be unfettered. The Claimants submitted, and I accept, that an analogy can be drawn with the Court’s power under CPR 3.1(7) to vary or revoke an order made under the rules of the CPR. The Court of Appeal in Tibbles v SIG plc [2012] EWCA Civ 518, [2012] 1 WLR 2591 considered how the circumstances in which the power under the Rule can be successfully invoked and held as follows at [39] to [41] (per Rix LJ):

“39.

In my judgment, this jurisprudence permits the following conclusions to be drawn:

(i)

Despite occasional references to a possible distinction between jurisdiction and discretion in the operation of CPR r.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.

…

41.

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 . On that basis, the power within the rule would not be invoked in order to give a party a second bite of the cherry, or to avoid the need for an appeal, but to deal with something which, once the question is raised, is more or less obvious, on the materials already before the court.”

In relation to the passage at paragraph 41 of the judgment in Tibbles, it is, however, appropriate to keep in mind the guidance of Popplewell J. in Orb a.r.l. v Ruhan [2016] EWHC 850 (Comm) at [82], when he said that even on interim applications:

“… a party must bring forward an argument on all points reasonably available to him at the first opportunity … to allow him to take them serially in subsequent applications would permit abuse and obstruct the efficacy of the judicial process by undermining the necessary finality of unappealed interlocutory decisions.”

The Claimant submitted that similar principles apply on an application under CPR 25.20(6)(b) and I agree. There is no exhaustive definition of the circumstances as to when a court will exercise its discretion to vary an interim payment order. However, I accept that ordinarily a court should be looking to see whether there is a principled reason to exercise its discretion in the applicant’s favour. That principled reason will normally or ordinarily involve (i) a material change of circumstances since the order was made or (ii) a situation where the facts on which the original decision was made were (innocently or otherwise) mis-stated. I would add that where the application is pursued on the basis that the original decision was made on the basis of facts which were mis-stated, then it seems to me that the mis-statement must go to facts which were material to the court’s original exercise of its discretion.

Consistent with the reasoning in paragraph 41 of the judgment in Tibbles, I accept that, if there were evidence that Bryan J. or the Claimants and their legal representatives had overlooked the effect of the US and UK sanctions regime during the afternoon hearing on 11 February 2025, then this would be a ground on which the Court might consider whether it was appropriate to vary the Interim Payment Order.

Further, in determining whether to exercise its discretion to vary an interim payment order, the Court will also have in mind the reasons why it is said that the matters which are relied on to ask the Court to vary its order were not before the Court when the order was originally made and whether there has been any delay in making the application.