TIBBLES BITES AGAIN: THE PROBLEMS OF ATTEMPTING TO VARY A COURT ORDER
Hot on the heels of the previous post in relation to variation of court orders that a party dislikes comes another report highlighting the difficulties facing a party seeking to vary an order, Apex Global Management –v- Global Torch Ltd  EWHC 2478 (Ch).
This was a case relating to litigation against a Saudi Royal Prince. At a hearing where e-disclosure was being considered the court made an order that there should be a disclosure statement signed personally by each individual party. The parties were not entitled to serve the disclosure statement served by their solicitors or some other agent.
The Saudi Prince did not sign the disclosure statement. There exists a Protocol whereby Saudi Royal Princes do not, or cannot, participate in such proceedings by signing documents. When the document was not signed an unless order was obtained. An order was made on the 18th September that unless the Prince made a witness statement which was signed personally the Particulars of Defence be struck out. That order was not complied with and judgment was entered for US$7.7 million.
THE APPLICATION TO VARY
Once judgment was entered the Prince applied for the order to be varied and for relief from sanctions. It was argued that there should never have been an order that the Prince sign personally and that the unless order was inappropriate. (The application appears to have proceeded wholly on the basis of the application to vary).
It was argued that when the judge originally made the order he was unaware of the strictness of the requirement that the Prince could not supply a witness statement. As a result of the judgment the Prince was the subject of a very significant judgment which his co-defendants could defeat at trial.
CONSIDERATION OF THE TIBBLES PRINCIPLES BY THE JUDGE
Mann J stated that it was the first order, directing signature, that must be attacked for the application to appeal. He considered the Tibbles principles, observing:
“Not surprisingly the courts have sought to impose some limits on that lest it
become a vehicle for constant, frequent and unjustified challenges to orders
that have been made. The fulfilment of the whole purpose of making orders
and rules relating to estoppel, functus and certainty depends on court orders
standing and not being re-litigated time and time again”
He found that:
- There was nothing that indicated that the position was misstated to the judge who made the original order. It was not possible to identify any relevant facts of which the judge was not aware or any facts which were misstated.
- Everything relevant about the protocol was known at the time of the order.
- This was not a case of further facts coming to light. “it is that the consequences of the decision and the approach to the litigation adopted by the Prince at the time have come home to the Prince, by a judgment being entered.”
- The Prince had sought to “beef up” the material before the initial judge by providing more material about the Protocol and by proposing an alternative mechanism for satisfying the underlying requirements of the disclosure statement. These were not new facts which were not known to the initial judge. “They are simply attempts by the Prince to avoid the consequences of the order.”
A LEGAL POINT AS TO SIGNATURE
An argument was advanced on the issue whether, as a matter of law, a disclosure statement should be signed by a litigant rather than an agent on his behalf. The judge held that this was a matter of discretion. It was not a matter to be dealt with by a judge at the same level and should be taken up with the Court of Appeal.
“If the Prince does not like that order – and it is plain that he does not – then an
appeal is his route. He is of course out of time for appealing and were he to
seek to appeal he would first have to overcome that hurdle. It would be for
the Court of Appeal to deal with that particular point and I will say no more
about it for that very reason, save to say that if the Prince finds himself out
of time and does not get an extension of time for appealing, and if that is the
reason that he cannot take the matter further, then that is a consequence of
his not taking the point within the time limited for appealing. The inability
to mount an appeal because it is late is no reason for going back and
tackling an interlocutory decision as a matter of variation. “
This was a decision made before Mitchell. However it highlights the difficulties of applying for a variation. It also illustrates that difficult decisions may have to be made in relation to the question to whether to appeal or whether to apply for a variation.
The Tibbles criteria are discussed at http://civillitigationbrief.wordpress.com/2013/12/01/i-didnt-like-that-order-anyway-can-i-set-it-aside-now-consideration-of-the-tibbles-criteria-in-applications-for-relief-from-sanctions/
- The Tibbles case is at http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2012/518.html&query=tibbles&method=boolean
- The Apex case is available on Lawtel.