CIVIL PROCEDURE BACK TO BASICS 48: AN APPLICATION TO SET ASIDE AN ORDER MADE WITHOUT NOTICE IS A REHEARING AND NOT A REVIEW (& NO NEED TO WORRY ABOUT THE TIBBLES CRITERIA GETTING ITS CLAWS INTO THE CASE EITHER)
One point that arose from the Court of Appeal decision in Al-Zahra (PVT) Hospital & Ors v DDM  EWCA Civ 1103 contains observations which indicate that it is easy to lose sight of a basic point in relation to orders made without notice. An application to set aside those orders is heard as a rehearing and not a review of the order.
“an application under CPR 23.10(1) to set aside an order obtained without notice should involve a rehearing of the issue, and not a review of the decision that it is sought to set aside”
THE RULES: CPR 23.10
Application to set aside or vary order made without notice
(1) A person who was not served with a copy of the application notice before an order was made under rule 23.9, may apply to have the order set aside(GL) or varied.
(2) An application under this rule must be made within 7 days after the date on which the order was served on the person making the application.
THE COURT OF APPEAL JUDGMENT IN THE AL-ZAHARA CASE
“ ……It follows that, to the extent that it is relevant and material, the hearing before Master Cook on 12 July 2017 was a rehearing of the issue whether to grant the extensions of time, not a review of his earlier decisions, and the appeal to me is (unusually) itself a rehearing of the application considered by Master Cook on 12 July 2017, albeit giving Master Cook’s decision due weight….”
“ Nothing has been said to me in the hearing of this appeal to suggest that the Master was reminded of the nature of the hearing before him which was that of a rehearing, not merely a review of his earlier decisions ….. As I have indicated, he approached the task he set himself by simply reviewing the material presented to him when he made the two extension orders. Whilst that is undoubtedly a significant part of the exercise, it is not necessarily the sole part. Whilst I differ from an experienced Master on a matter of this nature with considerable diffidence, I respectfully consider that the decision to refuse an adjournment to enable further evidence to be proffered on behalf of the Claimant to have been an error. I do not think it can simply be characterised as a case management decision with which, in the normal course of events, a Judge on appeal would not interfere: it was something that went to the heart of the exercise he was called on to perform and the decision not to permit further evidence to be given does suggest that the focus of the hearing, with the encouragement of the 1-6 Defendants, became too narrow.”…
In my view, Foskett J was correct to hold that, if and in so far as Master Cook approached the hearing before him as a review rather than a rehearing, Master Cook was in error. Foskett J appropriately cited (at ) the following passage from paragraph  of Dyson LJ’s judgment in Hashtroodi in which Dyson LJ made it clear that an application under CPR 23.10(1) to set aside an order obtained without notice should involve a rehearing not a mere review:
THE KEY JUDGMENT
The Court of Appeal held that the correct approach was that, when considering an order without notice, the application was heard by way of rehearing rather than review. This principle goes back to Hashtroodi v Hancock  EWCA Civ 652
“In my view, Foskett J was correct to hold that, if and in so far as Master Cook approached the hearing before him as a review rather than a rehearing, Master Cook was in error.
Foskett J appropriately cited (at ) the following passage from paragraph  of Dyson LJ’s judgment in Hashtroodi in which Dyson LJ made it clear that an application
under CPR 23.10(1) to set aside an order obtained without notice should involve a rehearing not a mere review:
“ It is common ground that in the events which have occurred here, the appeal to this court is a rehearing, rather than a review of the decision of [the deputy master who considered the application to set aside the extension order of the Master]. This is because … an application under CPR 23.10(1) to set aside an order obtained without notice should involve a rehearing of the issue, and not a review of the decision that it is sought to set aside; but, in the present case, the deputy master conducted the application as if it were a review of the decision of [the Master].” (emphasis added)
THE APPLICANT CAN CHALLENGE WHETHER IT WAS APPROPRIATE TO MAKE AN ORDER IN THE FIRST PLACE
Haley -v- Siddique  EWHC 835 (Ch) Judge Hodge Q.C., sitting as a judge of the High Court made it clear that the “Tibbles” criteria did not apply to an application to set aside an order made without a hearing, or on the court’s own initiative.
“Where an order has been made by the court of its own initiative, or without a hearing, the parties are entitled to apply to the court to have that order set aside or varied. On such an application, unlike one to set aside an order made at a hearing which the parties have either attended, or had an opportunity to attend, the restrictions contained within CPR 3.1(7), as laid down by the Court of Appeal in the case of Tibbles –v- SIG plc  EWCA Civ 518,  1 WLR 2591 have no application. Since the parties have not had an opportunity of making representations to the court before an order was made without a hearing, or of the court’s own initiative, the parties are entitled to invite the court to review whether it was appropriate to make the order in the first place.”