SETTING ASIDE AN ORDER ON COURT’S OWN INITIATIVE: A REDETERMINATION OF THE MATTER AND NOT SUBJECT TO TIBBLES PRINCIPLES
There is a short passage in the judgment today of Master Clark in Massimo Osti SRL v Global Design And Innovation Ltd & Anor  EWHC 2263 (Ch) that provides an important reminder of the relevant principles that apply when a party seeks to set aside an order made of the court’s own initiative. In these circumstances the court is hearing the matter afresh, and is not bound in any way by the “Tibbles” principles.
The court made an order, of its own initiative, to transfer an action to the Intellectual Property Enterprise Court (IPEC). The claimant made an application to set aside that order, the defendant resisted the application.
THE JUDGMENT ON THIS POINT
The Master rejected an argument that the claimant’s application was subject to the “Tibbles” criteria.
Issues in the application
An initial point arose as to the principles governing the application. The defendants’ counsel submitted that the application was made under CPR 3.1(7), and governed by the principles set out in Tibbles SIG plc  1 WLR 2591. I reject that submission. The transfer order was made of the court’s own initiative, pursuant to CPR 3.3. CPR 3.3(5) provides that when the court makes such an order, a party affected by the order is entitled to apply to have it set aside, varied or stayed; and this is the provision governing the application. The hearing of such an application is, in my judgment, a redetermination of the issue in question, with the benefit of the parties’ submissions; and is not governed by the restrictive principles in Tibbles, which apply to an application to set aside an order made at a hearing. For this reason, it is also unnecessary that the application be heard by the judge who made the initial order.
I have come across numerous cases in which a court has set a date for compliance and that date has passed long before the order itself is drawn up and sent out to the parties.
Court’s power to make order of its own initiative
(1) Except where a rule or some other enactment provides otherwise, the court may exercise its powers on an application or of its own initiative.
(Part 23 sets out the procedure for making an application)
(2) Where the court proposes to make an order of its own initiative –
(a) it may give any person likely to be affected by the order an opportunity to make representations; and
(b) where it does so it must specify the time by and the manner in which the representations must be made.
(3) Where the court proposes –
(a) to make an order of its own initiative; and
(b) to hold a hearing to decide whether to make the order,
it must give each party likely to be affected by the order at least 3 days’ notice of the hearing.
(4) The court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations.
(5) Where the court has made an order under paragraph (4) –
(a) a party affected by the order may apply to have it set aside, varied or stayed; and
(b) the order must contain a statement of the right to make such an application.
(6) An application under paragraph (5)(a) must be made –
(a) within such period as may be specified by the court; or
(b) if the court does not specify a period, not more than 7 days after the date on which the order was served on the party making the application.
A REMINDER OF THE TIBBLES’ PRINCIPLES
THE TIBBLES CRITERIA
In Tibbles v SIG Plc (t/a Asphaltic Roofing Supplies)  EWCA Civ 518 the claimant was seeking, after being successful at trial, to vary an earlier order of a 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:
“… 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.