An application was made under Part 3.1(7) to vary an earlier final order made by the judge after a trial, on the application of the wife of one of the defendants whose potential interest in funds subject to the judge’s order had been overlooked by him when making it, in her absence.
Held: The application was allowed. The court acknowedged his mistake, and said: ‘ this is in my view a good example of why exceptionally the court should retain a power to review a final order.’ Peter Smith J said: ‘It seems to me that with respect to the authors of the White Book and the submissions of Mr Spearman QC there is nothing in the Court of Appeal decisions which suggests that the rule should be cut down so as to be completely inapplicable to any final order. The wording of the rule is very wide. It seems to me it was intended by the draftsman to confer the extremely wide supervisory powers in the Civil Procedure regime that existed elsewhere in insolvency courts as set out above. That is not to say that a final order can be set aside by a Judge willy nilly. It is a matter of discretion to be exercised according to the particular circumstances of the case. That in my mind is all that the Court of Appeal Judges to which I have referred say when they support Patten J’s judgment. They say in effect as regards final orders it would be hardly ever appropriate to set aside a final order. They do not say ‘never’.’
Judges:
Peter Smith J
Citations:
[2010] EWHC 3275 (Ch)
Statutes:
Jurisdiction:
England and Wales
Citing:
See Also – Independent Trustee Services Ltd v GP Noble Trustees Ltd and Others ChD 26-Jan-2009
Application to vary a freezing order made on a without notice application.
Held: Lewison J set out the proper approach at para. 6 by setting out the four questions which should be addressed: ‘(1) does the claimant have an arguable proprietary . .
Cited by:
Cited – Kojima v HSBC Bank Plc ChD 22-Mar-2011
The defendant had been found to owe money to the bank. In order to avoid damaging his career he agreed to execute a charge to secure the judgment. He now sought release from that order, and to withdraw his admission of the debt. He had acted in . .
Appeal from – Independent Trustee Services Ltd v GP Noble Trustees Ltd and Others CA 28-Feb-2012
Lloyd LJ said: ‘a transferee of the legal title to property under a disposition made in breach of trust, or a successor in title to such a person, does not have the beneficial title to the property, which remains held on the original trusts, unless . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 18 July 2022; Ref: scu.427291