Secretary of State for Work and Pensions v Payne & Anor

A court cannot use a stay or case-management order to authorise general conduct which its judgment has held unlawful, unless legislation gives that power. Civil Procedure Rules rule 3.1 does not overcome that constitutional limit.

The power to vary or revoke an order is not a substitute for an appeal. It will ordinarily require materially new circumstances or proof that the court was misled. Re-presenting the practical consequences of an order, without new material, does not justify variation.

The Secretary of State applied to vary a stay granted when the Court of Appeal had dismissed his appeal from an order of Cranston J. The earlier judgments had held, by a majority in this court, that there was no power in the circumstances concerning DROs to make deductions from social-security benefits.

The existing stay postponed repayment of deductions made during the moratorium period, but did not permit further deductions. The Secretary of State sought an expanded stay allowing continuing deductions under existing and new DROs, principally because repayment might cause irrecoverable loss to public funds. The respondents submitted that the court lacked power to authorise conduct contrary to its declaration of the law and that no basis existed to vary a final order.

1. Application refused. The court could not grant a stay which authorised the Secretary of State generally to continue deductions that the court had held to be unlawful. A court has no constitutional power to suspend or dispense with the law it has declared, unless legislation authorises that course. Case-management powers under the Civil Procedure Rules cannot supply such authority.

2. Rule 3.1(2)(f), which permits a stay of proceedings or judgment, did not permit the proposed order. The requested stay would have gone beyond suspending enforcement of the earlier order. It would have positively authorised continuing deductions contrary to the law as declared.

3. The power in rule 3.1(7) to vary or revoke an order was also unavailable. Applying Edwards v Golding, [2007] EWCA Civ 416, the jurisdiction is not an alternative route of appeal. Ordinarily, variation requires additional material, such as a material change of circumstances or the court having been misled as to the relevant facts.

4. The Secretary of State established neither condition. The asserted financial and administrative effects of the limited stay did not amount to new facts, new arguments, or a fresh understanding of the position that justified reopening the order. There was no basis for concluding that the court had been misled. The court therefore declined to vary the stay, while noting that an expedited Supreme Court process could be sought if permission to appeal were granted.

• Court of Appeal (Civil Division) — refused the Secretary of State’s application to vary the stay attached to its earlier final order in this litigation.
• Court of Appeal (Civil Division) — had previously dismissed the Secretary of State’s appeal from Cranston J and granted only a limited stay pending any appeal to the Supreme Court.
• Queen’s Bench Division, Administrative Court — Cranston J made the order from which the Secretary of State appealed; its citation is not stated in the judgment.