I NEVER LIKED THAT ORDER ANYWAY – CAN I SET IT ASIDE NOW? CONSIDERATION OF THE TIBBLES CRITERIA IN APPLICATIONS FOR RELIEF FROM SANCTIONS”.

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In the Mitchell case the claimant made an attempt to challenge and set aside one of the orders made by the Master which had been breaches. The Court gave clear guidance as to the steps to be taken if a party is seeking to challenge an order.  The Court has to consider the application that challenges the order first and assess whether the application meets the criteria set out in Tibbles –v- SIG Plc [2012] EWCA Civ 518. Here we look at that criteria and whether it is likely that it can be used to assist a litigant seeking relief from sanctions. THE TIBBLES CRITERIA In Tibbles the claimant was seeking, after being successful at trial, the order of the District Judge transferring the action from the small claims to the fast track. The order transferring the action did not make any provision for the claimant to recover the costs prior to transfer. The claimant argued that the order transferring the action should have included provision for the costs incurred prior to transfer to be recoverable as if they were fast track costs. As it was the provisions of CPR 44.11 applied and, without a specific order, the pre-transfer costs were not recoverable.

THE DECISION IN TIBBLES

 The Court of Appeal rejected the argument that such an order could be readily granted. There was a detailed consideration of  the relevant principles and Lord Justice Rix stated:

(i)                 …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.

There were other factors to be considered:

  •  Misstatement could include omission as well as positive statements. 
  • “… 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.” 
  • An order can be can be varied if there was a manifest mistake on the part of the judge. (Usually because the order was not having the effect intended by the judge). 
  • An order to vary will be exceptional and rare. 

“… 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. “

THERE MAY BE ROOM FOR A PROMPT APPLICATION

“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.  However it has to be observed that it will extremely rare for a party, in default, to be able to make a “prompt” application.HOWEVER THE APPLICATION MUST BE PROMPT “ I emphasise however the word “prompt” which I have used above. The court would be unlikely to be prepared to assist an applicant once much time had gone by. With the passing of time is likely to come prejudice for a respondent who is entitled to go forward in reliance on the order that the court has made. Promptness in application is inherent in many of the rules of court: for instance in applying for an appeal, or in seeking relief against sanctions”

 

APPLICATIONS FOR VARIATION WILL BE RARE AND DIFFICULT

Tibbles makes it clear that applications to vary will not be granted readily. Indeed they will be granted rarely. It will be a rare case in which an application to vary the original order can displace the need for relief from sanctions for breach of that order.

THE INTERPLAY WITH MITCHELL

The position of a party combining an application for relief from sanctions with an application to vary is clear. The application to vary must be considered first.

“On an application for relief from a sanction, therefore, the starting point should be that the sanction has been properly imposed and complies with the overriding objective.  If the application for relief is combined with an application to vary or revoke under CPR 3.1(7), then that should be considered first and the Tibbles criteria applied.  But if no application is made, it is not open to him to complain that the order should not have been made, whether on the grounds that it did not comply with the overriding objective or for any other reason.

NOT AN EASY WAY TO SUBVERT MITCHELL

It is clear, therefore, that applying to vary an order is not an easy way to subvert the problems caused by Mitchell.  Further it is no answer to criticise the original order.

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THE CASES