SETTING ASIDE AN ORDER MADE WITHOUT A HEARING OR MADE WITHOUT NOTICE : THE RELEVANT CRITERIA
The previous post looked at the judgment in Kuznetsov, R (On the Application Of) v London Borough of Camden  EWHC 3910 (Admin). In that judgment Mostyn J stated that there was no authority on the issue of the criteria when a party is seeking to set aside an order made without a hearing. There may be a difference between an order made “without notice” and an order made “without a hearing”. However the authorities cited in the previous post make this distinction unlikely.
“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.
THE JUDGMENT IN HASHTROODI
Some of the cases on this point were mentioned in the earlier post. It is also worth reading the Court of Appeal decision in Hashtroodi v Hancock  EWCA Civ 652. The Court was considering orders extending time for service of the claim form, which had been made without notice. They held that the Deputy Master had erred in treating a hearing to set aside orders made without notice as a “review”. A hearing in these circumstances is not a review, but a total rehearing.
“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 Deputy Master Eastman. This is because, as Keith J pointed out, 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 Master Tennant.”
IS THERE A DISTINCTION BETWEEN A DECISION MADE WITHOUT NOTICE AND ONE MADE WITHOUT A HEARING
This could lead to some technical arguments. Often orders are made without a hearing in circumstances where the respondent has had no notice that an application has been made. In Mr Kuznetnov’s case he knew that a hearing was to take place, but not that the issue of costs was going to be considered. However the distinction as to whether this was a decision “without notice” or “without a hearing” plays a significant part in the starting criteria for the application when the decision is being reviewed.
However the authorities cited in the previous post make this distinction unlikely. In particular in Haley -v- Siddique  EWHC 835 (Ch) there is a reference to orders being made by the court on its authority.