Windsor v Bristol Crown Court & Anor

A final order cannot generally be varied under CPR 3.1(7) merely because a party later appreciates the significance of circumstances known when the order was made. Finality in litigation requires compelling grounds, such as genuinely erroneous information or a subsequent event that destroys the order’s basis.

Where search warrants are quashed, the court may permit an application under section 59 of the Criminal Justice and Police Act 2001 where the proposed interpretation of that provision is reasonably arguable. The court may also allow retention and use of copies made before judicial review proceedings and injunctions, having balanced privacy, property and confidentiality rights against the public interest in detecting crime. Criminal-trial admissibility remains subject to section 78 of PACE.

The claimants challenged search warrants issued by HHJ Horton at Bristol Crown Court. Earlier related claims had succeeded, and the warrants had been quashed. The court had made a detailed final order requiring return of seized material and restricting its examination, copying and use.

Five further claimants brought materially identical claims concerning other premises. HMRC conceded that the warrants should also be quashed, but sought to vary the earlier final order and to obtain equivalent flexibility in the new claims. The issues were whether section 59 of the Criminal Justice and Police Act 2001 could apply and whether HMRC should retain and use copies already made.

1. Application to vary final order refused. CPR 3.1(7) does not confer a general power to reopen a final decision or permit a judge to hear an appeal from himself. The order of 5 April 2011 definitively resolved the parties’ rights concerning the seized material, although its operation was expressed conditionally.
2. The circumstances relied on by HMRC did not justify variation. HMRC had opportunities to raise the relevant arguments before the order was made. Its later realisation that copies might assist a section 59 application was a change in appreciation, not a change of circumstances. The public interest in finality in litigation, identified in Johnson v Gore Wood & Co, also militated against reopening the order. The application additionally sought retrospective validation of conduct which had breached earlier court orders.
3. The final orders in the five new claims should follow the earlier order as closely as possible. Section 59 was not so plainly inapplicable that an application to the Crown Court would be futile. Although the statutory language was infelicitous, the provision was remedial and could arguably extend to material seized under an unlawful warrant where a fresh warrant could immediately lawfully authorise seizure. The issue was therefore best left to the appropriate judicial authority.
4. The court declined to order destruction of copies already made or prohibit use of information derived from them. The copies were made before judicial review proceedings and injunctions, were not said to contain privileged or purely private material, and might be relevant to an ongoing serious-fraud investigation. Proportionality did not require the additional restrictions sought. If criminal proceedings were brought, section 78 of PACE would provide the relevant safeguards on admissibility.
5. The five claims were allowed to the extent that the warrants were quashed, with consequential relief substantially mirroring the earlier final order. The parties were invited to agree the order, with consequential matters dealt with by written submissions.

The judgment records earlier related judicial review claims in which the search warrants were quashed and consequential relief was granted. The present five claims concerned materially identical warrants, and HMRC conceded that they also had to be quashed.