QB-2022-000681 - [2025] EWHC 2744 (KB)

CPR 3.1(7)

The parties were agreed as to the relevant approach to the applications to revoke the Order of Stacey J and to vary the Order of Morris J. The basis for either lay in CPR 3.1(7) which gives: “A power of the court under these Rules to make an order includes a power to vary or to revoke the order”.

In Tibbles v SIG plc [2012] EWCA Civ 518;[2012] 1 W.L.R. 2591 Rix LJ (with whom Etherton and Lewison LJJ agreed) reviewed the authorities on the exercise of the discretion in CPR 3.1(7) and concluded:

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

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.

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.

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.

Thus, there is room for debate in any particular case as to whether and to what extent, in the context of principle (b) in (ii) above, misstatement may include omission as well as positive misstatement, or concern argument as distinct from facts. In my judgment, this debate is likely ultimately to be a matter for the exercise of discretion in the circumstances of each case.

Similarly, 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.

Edwards v Golding [2007] EWCA Civ 416 is an example of the operation of the rule in a rather different circumstance, namely that of a manifest mistake on the part of the judge in the formulation of his order. It was plain in that case from the master's judgment itself that he was seeking a disposition which would preserve the limitation point for future debate, but he did not realise that the form which his order took would not permit the realisation of his adjudicated and manifest intention.

The cases considered above suggest that 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.”

Should the security for costs order made by Stacey J be revoked pursuant to CPR 3.1.7?

The parties’ submissions

The Claimant argued that the Order should be revoked as it was made on a “false premise” advanced by the Defendants in their Defence that the PdV was of doubtful validity. The Defendants had disclosed a notarial deed which it was said to establish the validity of the extension of the PdV. In the written submissions for the hearing, the Claimant argued that the Defendants should have alerted the Court to the existence of the notarial deed before the hearing before Stacey J. It was described as “exceptional circumstances” such that the Defendants’ “initial or continuing disclosure obligations required D to hold up its hands to admit the mistake or wrongdoing”. In the written submissions it was argued that the Defendants had been “arguably dishonest” in pleading paragraph 44(3)(i) in the way that it had done or, at least, “at a minimum seriously improper”. It was submitted that the Defendants’ “current position amounts to an attempt to profit from their own turpitude”. In his oral submissions Mr Maguire did not put the argument using such language but did argue that the withdrawal of paragraph 44(3)(i) was of “existential significance” to the claim and that there would inevitably have to be “an inquiry at trial” as to the circumstances in which it was pleaded. He argued that the position was now that a number of further claims might be advanced. He accepted however that there was no application by the Claimant to amend the claim to include those unparticularised further claims.

The Claimant argued that if paragraph 44(3)(i) had been withdrawn before the security for costs hearing it would have argued that the court should have considered the merits of the claim. Mr Maguire (who did not appear before Stacey J) submitted that had he been instructed then the Claimant would have argued that there was a high probability of success such that the application for security for costs should be refused.

For the Defendants, Ms O’Sullivan KC, argued that the Claimant had fundamentally misunderstood the position. The Defendants had not been advancing a positive case as to the validity of the extension of the PdV: it was simply a non-admission as to whether it had been validly extended. In any event, it was wrong to characterise the document relied upon as a deed. Only the letter accompanying the deed had been notarised and so it was unclear whether the deed itself had been notarised. Notwithstanding that uncertainty, the Defendants had decided that it was not proportionate to maintain the non-admission and was content to proceed on the basis that the PdV had been validly extended. Consequently, the need for expert advice in relation to Cameroonian law was no longer necessary.

The Defendants argued that the Claimant could not establish that the withdrawal of paragraph 44.3(i) would have enabled it to argue that there was a high degree of probability of success. The Defendants pointed to the approach taken by Stacey J to the Defendants’ attempts to persuade the court to consider the merits of the claim. There was every reason to believe that had the Claimant similarly sought to persuade the court it too would have been unsuccessful. Furthermore, there was nothing in the argument that establishing the validity of the extension of the PdV would be decisive in determining the merits of the claim. The essence of the case was as set out in paragraph 32 of the Defence (set out above at paragraph 16).