SAS Institute Inc v World Programming Ltd

A court’s power under CPR rule 3.1(7) to vary or revoke its own order cannot be used as an appeal against an order with which a party is dissatisfied. The power is ordinarily confined to cases involving a material change of circumstances or an order made on a false basis, such as through material non-disclosure or erroneous information.

Questions referred to the Court of Justice under Article 267 are the referring court’s questions. Parties may assist with their formulation, but the court must settle them impartially and according to the guidance required. An application made late, without sufficient justification, and seeking unnecessary or partisan amendments should be refused.

The claimant had obtained an order referring questions concerning the interpretation of European copyright directives to the Court of Justice of the European Union. The reference was pending as Case C-406/10. The claimant later applied to amend the wording of the questions.

The application was opposed on jurisdictional and discretionary grounds. The court considered whether it could vary the sealed order under CPR rule 3.1(7), whether the application had been made too late, and whether the proposed amendments were necessary to enable the Court of Justice to provide guidance on the issues.

1. Jurisdiction. The court accepted that the Court of Justice would probably entertain an amendment made by the referring court, given the national court’s wide discretion in referring matters under Article 267: Case 166/73 and Case 65/77 were relevant examples. That did not determine the domestic power to vary the order.
2. CPR rule 3.1(7) could not be used as an equivalent to an appeal. The approach approved in Collier v Williams [2006] EWCA Civ 20 and Roult v North West Strategic Health Authority [2009] EWCA Civ 444 confined reconsideration ordinarily to a material change of circumstances or an order made on a false basis. Neither circumstance existed. Paragraph 1.1 of the Practice Direction to CPR Part 68 did not justify a broader power.
3. Delay and necessity. The application was issued more than two months after the order had been sealed and transmitted, without adequate explanation. Altering the questions would have required the written procedure before the Court of Justice to be substantially restarted, causing wasted time, effort and expense. The proposed amendments were also unnecessary. The existing questions were sufficient to address the issues, and the proposed additions were largely encompassed by questions already referred.
4. Questions under Article 267 are the referring court’s questions, not the parties’ questions. Party submissions are useful to ensure completeness and clarity, but the final wording must be impartial. Amendments designed to restore wording preferred by a party, rather than to remove a genuine ambiguity or obscurity, are inappropriate.
5. The claimant’s application was dismissed.

The judgment describes an earlier procedural order dated 28 July 2010, following the court’s judgment dated 23 July 2010, by which questions were referred to the Court of Justice under Article 267. The reference was pending as Case C-406/10. This judgment dismissed the subsequent application to amend the questions.