Paul Joseph, a member of the Commercial and Chancery Group at No5 Chambers, has secured an important victory for SIG PLC in the Court of Appeal. The appeal concerned a point of principle and practice concerning the discretion contained in CPR Part 3.1(7) to vary or revoke an order.
Paul was instructed by Chris White, costs draftsman at Plexus Law in Leeds, in connection with the detailed assessment of the Claimant’s costs in his action for personal injury against SIG. The action had originally been allocated to the small claims track but was subsequently reallocated to the fast track on an application by the Claimant. The default provision, set out in CPR Part 44.11, was that the costs incurred up to reallocation (said to be in the order of £20,000 on the part of the Claimant) were to be treated as costs in the small claims track, unless the Court made a different order. At the time of reallocation, the Claimant did not ask the Court to make any different order.
The action went to trial. The Claimant was awarded £1,500, reduced by 50% for contributory negligence. At the detailed assessment of the Claimant’s costs, Plexus Law took the point, on behalf of SIG, that any costs incurred up to reallocation were small claims court costs. The Claimant then applied under CPR Part 3.1(7), some 11 months after the reallocation, to vary the District Judge’s order to provide that the costs incurred up to reallocation should be treated as fast track costs.
Paul appeared at that application on behalf of SIG. The District Judge concluded that he had jurisdiction under CPR Part 3.1(7) to vary his original order and that he should do so because he would have done so at the original hearing if the issue had been brought to his attention. SIG appealed. Paul appeared before the Circuit Judge who allowed the appeal.
The Claimant then appealed to the Court of Appeal and Paul appeared again for SIG. The Court of Appeal accepted Paul’s argument, set out in his Respondent’s notice, that the District Judge was wrong to look at the matter solely from the point of view as to what he would have done had the matter been raised before him at the reallocation hearing. The correct approach 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, new evidence, delay and any explanation offered for it and any prejudice. 
The Court of Appeal held that where the facts or arguments were known or ought to have been known at the time of the original hearing, it was unlikely that the order could be revisited, particularly where the failure to mention them was conscious or deliberate. It would normally take something out of the ordinary to lead to variation or revocation of an order, especially in the absence of a change of circumstances. The Court emphasised the need for an application to be made promptly and accepted Paul’s argument that the passage of time had caused prejudice to SIG because it had been entitled to proceed on the footing that the default provisions in CPR Part 44.11 would apply in the assessment of the Claimant’s costs. There had been no change of circumstances and no misrepresentation or misstatement to the original District Judge. The Claimant’s appeal was therefore dismissed.
The case is reported as Tibbles –v- SIG PLC (T/A Asphaltic Roofing Supplies) [2012] EWCA Civ 518.