The defendant sought a variation under Part 3.1(7) of an order setting aside an earlier judgment in default of defence, on terms requiring a substantial payment into court with which the defendant, who was a litigant in person, had not complied.
Patten J discussed the jurisdiction under Part 3.1(7): ‘The Deputy Judge exercised a discretion under CPR Part 13.3. It is not open to me as a judge exercising a parallel jurisdiction in the same division of the High Court to entertain what would in effect be an appeal from that order. If the Defendant wished to challenge whether the order made by Mr Berry was disproportionate and wrong in principle, then he should have applied for permission to appeal to the Court of Appeal. I have been given no real reasons why this was not done. That course remains open to him even today, although he will have to persuade the Court of Appeal of the reasons why he should have what, on any view, is a very considerable extension of time. It seems to me that the only power available to me on this application is that contained in CPR Part 3.1(7), which enables the Court to vary or revoke an order. This is not confined to purely procedural orders and there is no real guidance in the White Book as to the possible limits of the jurisdiction. Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR Part 3.1(7) is exercisable, it seems to me that, for the High Court to revisit one of its earlier orders, the Applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him. The latter type of case would include, for example, a case of material non-disclosure on an application for an injunction. If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done, in my judgment, in the context of an appeal. Similarly it is not, I think, open to a party to the earlier application to seek in effect to re-argue that application by relying on submissions and evidence which were available to him at the time of the earlier hearing, but which, for whatever reason, he or his legal representatives chose not to employ.’
Judges:
Patten J
Citations:
[2003] EWHC 1740 (Ch)
Links:
Statutes:
Jurisdiction:
England and Wales
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 . .
Approved – Collier v Williams and others CA 25-Jan-2006
Various parties appealed refusal and grant of extensions of time for service of claim forms.
Held: The court gave detailed guidance. The three central issues were the proper construction of the rule, the question of whether the court could . .
Cited – Edwards v Golding and others CA 3-Apr-2007
The claimant appealed against an order that his claim in defamation had failed for limitation, the judge having held that time ran from publication even though the claimant did not know the identity of the author.
Held: The appeal was . .
Cited – CS v ACS and Another FD 16-Apr-2015
Rule Against Appeal was Ultra Vires
W had applied to have set aside the consent order made on her ancillary relief application accusing the husband of material non-disclosure. She complained that her application to have the order varied had been refused on the ground that her only . .
Approved – Roult v North West Strategic Health Authority CA 20-May-2009
The parties had settled a personal injury claim, on the basis as expected that the claimant would be provided with accommodation by the local authority. It later turned out that accommodation would not be provided, and he returned to court to . .
Cited – Masih, Regina (on The Application of) v Yousaf CA 6-Feb-2014
Appeal against refusal to set aside possession order made under assured shorthold tenancy. No rent was paid on three rent days, but then the Housing benefit begand clearing arrears in part.
Held: It is settled law that the notice requiring . .
Cited – Thevarajah v Riordan and Others CA 4-Feb-2015
The court was asked whether the judge at first instance had been right to attribute an agreement which he had not made to the defendants.
Held: The defendants were liable to pay 2.205 million pounds. . .
Cited – Thevarajah v Riordan and Others SC 16-Dec-2015
The defendants had failed to comply with an ‘unless’ order requiring disclosure, and had been first debarred from defending the cases as to liability. They applied to a second judge who granted relief from sanctions after new solicitors had complied . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Civil Procedure Rules
Updated: 12 July 2022; Ref: scu.263723