Simms v Carr

The power under CPR 3.1(7) to vary or revoke an order is limited. It may be exercised where there has been a material change of circumstances after the original order, or where the court was misled about the facts when making it. It cannot be used to reargue the original application on material that was, or could have been, deployed then. The proper route for that challenge is an appeal.

Facts existing before the original order do not become a material change merely because they were discovered later. The later material must also have been material to the original discretionary decision. A court should be cautious about extending the concept of material change so as to permit review without an appeal.

The claimant brought proceedings alleging that an earlier judgment had been procured by fraud and seeking damages and other relief against several defendants, including Mr Simms. The defendants obtained security for costs orders under CPR 25.13, including an order requiring the claimant to provide £120,000 for Mr Simms’s costs.

The claimant did not appeal that order. He instead applied twice for it to be revoked under CPR 3.1(7). The first application and an appeal from its dismissal failed. On the second application, Master Bragge considered evidence concerning the earlier discharge of a freezing order and revoked the security order in relation to Mr Simms, while leaving the orders concerning the other defendants in place. Mr Simms appealed. The issue was whether the evidence concerning the freezing order justified revocation of the earlier order.

1. The appeal was allowed. The order revoking the security for costs order was set aside, and the original order requiring security of £120,000 for Mr Simms’s costs was restored.

2. Under CPR 3.1(7), as explained in Lloyds Investment (Scandinavia) Ltd v Ager Hannsen and approved in Collier v Williams, the court may revisit an earlier order where there has been a material change of circumstances or where the judge was misled about the factual position. The power is not a substitute for an appeal. It cannot be used to reconsider the same material or to rely on evidence and submissions that were available but not used at the original hearing.

3. A material change means a change occurring after the original order. The events relied on here occurred in July 2005, before Master Bragge made the security order on 16 June 2006. They were therefore not a later change of circumstances. The claimant’s case was instead that the Master had not known all the earlier facts. That could justify review only if the facts were material to the original discretion.

4. The freezing order had secured no assets and its discharge had caused the claimant no loss. The claimant was not a party to the recovery proceedings, and there was no basis for finding that the solicitors owed him a duty to seek his views before applying to discharge the order. Any arguable breach of duty owed to Kelci did not materially affect the balancing exercise on Mr Simms’s application for security for costs.

5. The court therefore held that the later evidence would not have materially affected the June 2006 decision. Master Bragge had no power to revoke his earlier order. The court nevertheless observed that any appeal against the original security order would require anxious consideration, given the serious allegations against Mr Simms and the fact that the order had stifled the claim.

• High Court (Chancery Division): Master Bragge’s order of 16 July 2007 revoked the security for costs order in favour of Mr Simms. Mr Simms appealed, and the appeal was allowed.
• Earlier procedural stages: Master Bragge’s original order of 16 June 2006 required security of £120,000 for Mr Simms’s costs. A first application to revoke it was dismissed by the Deputy Master and an appeal was dismissed by Sir Donald Rattee.