WL Gore & Associates GmbH v Geox Spa

A consent order may be varied only where there has been a material or significant change of circumstances, or where the judge was misled about the relevant facts. A party’s later appreciation of the commercial significance of circumstances already known when the order was made is not itself a change of circumstances. The hurdle is higher where the order was made by consent, although a liberty-to-apply provision may contemplate a further application. Serious commercial consequences do not automatically justify expedition. The court must consider the effect on other litigants waiting for trial, and very cogent reasons are required before one case is advanced at their expense.

The claimant sought to vary a consent directions order in a patent action concerning footwear soles. The order provided for a trial in November 2008 or later, following negotiations in which the parties had considered alternative dates. The claimant later sought an expedited trial before the end of July 2008, relying on the commercial impact of the existing timetable on its prospective licensees.

The application was made under Part 3.1 sub-rule 7 of the Civil Procedure Rules 1998. The central issue was whether the claimant had shown a material or significant change of circumstances after the directions were agreed and the consent order was made.

1. Application refused. The court applied the principles summarised in Lloyd's Investment (Scandinavia) Limited v Ager-Hanssen [2003] EWHC 1740 (Ch) and approved by the Court of Appeal in Collier v Williams [2006] EWCA Civ 20. The power to vary an order should be exercised only where there has been a material change of circumstances or the judge who made the order was misled about the factual position.
2. The order had been made by consent, which ordinarily imposed a higher hurdle. However, the presence of liberty to apply meant that the order itself contemplated that a further application might be made, consistently with Russell-Cooke Trust Co. v Prentis [2002] EWHC 1435 (Ch). The analogous approach in Chanel Ltd. v F.W. Woolworth & Co. Ltd. [1981] 1 W.L.R. 485 likewise required a significant change of circumstances.
3. No qualifying change had occurred. The underlying commercial circumstances had not changed. The claimant had merely developed a fuller appreciation of the significance of circumstances already known when the directions were agreed. The evidence also failed to establish that the relevant appreciation arose after the order was made.
4. The court additionally considered the effect of expedition on other litigants waiting for trial. Although the claimant faced serious commercial consequences, each litigant was entitled to its place in the court’s list. Very cogent reasons would be required to displace other cases, and the claimant had not established them.

The application to vary the consent order was therefore refused.