Tibbles v SIG Plc (t/a Asphaltic Roofing Supplies)

The power to vary or revoke an order under rule 3.1(7) of the Civil Procedure Rules 1998 is broad but constrained by finality, the appeal process and the prohibition against a second bite at the cherry. It will normally be exercised only following a material change of circumstances or a material misstatement of the facts. Those categories are not exhaustive.

Prompt correction may be possible where the parties and court genuinely overlooked an obvious matter requiring first consideration. The court must nevertheless decide the application by reference to circumstances existing when variation is sought. Relevant matters include new material, the applicant’s delay and its explanation, prior knowledge, and prejudice caused by reliance on the original order.

Tibbles v SIG Plc (t/a Asphaltic Roofing Supplies) concerned a personal injury claim initially allocated to the small claims track and subsequently reallocated to the fast track. The reallocation order did not displace the default costs treatment under rule 44.11 of the Civil Procedure Rules 1998.

After obtaining judgment and a costs order, the claimant sought to vary the reallocation order so that earlier costs would be treated as fast-track costs. District Judge Wilding granted the application approximately ten months after the reallocation. HHJ Elly allowed the defendant’s appeal, holding that the district judge lacked power under rule 3.1(7).

On the claimant’s second appeal, the central questions were whether rule 3.1(7) permitted correction of an overlooked matter and whether the district judge had properly exercised the discretion after the trial and substantial delay.

1. Appeal dismissed unanimously. Rule 3.1(7) of the Civil Procedure Rules 1998 conferred an apparently broad discretion to vary or revoke an order. That discretion was curtailed by the importance of finality, the need to protect the appeal process and the undesirability of allowing a second bite at the cherry. The principal circumstances justifying its use were normally a material change of circumstances or a material misstatement of the facts upon which the original decision was made. Those circumstances were firm guidance rather than an exhaustive statutory formula.

2. There could be prompt recourse to the court where the parties and judge had genuinely overlooked a matter which ought to have been addressed, and which could readily be considered for the first time on the existing materials. A next-day application concerning the effect of rule 44.11 could therefore have fallen within rule 3.1(7). Such an application would neither reconsider an issue already decided nor replace an appeal. Promptness was critical because delay commonly produced prejudice to a party entitled to rely on the existing order.

3. The present application was properly refused. It was issued about ten months after the reallocation and only after trial, judgment and commencement of detailed assessment. There had been no material change, misstatement or new evidence, and no explanation for the delay. The rule governing costs was known or ought to have been known to the legally represented claimant. The defendant had meanwhile conducted the litigation in reliance on the existing costs regime and faced substantial financial prejudice.

4. The district judge had also applied the wrong temporal approach. The question was not simply what order should originally have been made. The discretion had to be exercised at the date of the variation application, taking account of changed circumstances, new evidence, delay, its explanation and prejudice.

5. Paragraph 16.2 of the Costs Practice Direction did not widen or alter rule 3.1(7). No question requiring summary assessment of costs down to reallocation had arisen. The court left open the precise reach of the slip rule, while observing that a prompt and unprejudicial application concerning a genuine accidental omission might, in an appropriate case, fall within rule 3.1(7).

1. Court of Appeal (Civil Division): In Tibbles v SIG Plc (t/a Asphaltic Roofing Supplies) [2012] EWCA Civ 518 , the court dismissed the claimant’s second appeal. It upheld the result reached by HHJ Elly, while accepting that a prompt application immediately after the original order could have fallen within rule 3.1(7).
2. Luton County Court, HHJ Elly: Allowed the defendant’s appeal and reversed District Judge Wilding’s variation. The judge considered that rule 3.1(7) did not confer jurisdiction where the parties had failed to appreciate the procedural consequences of the original decision.
3. Luton County Court, District Judge Wilding: Varied the reallocation order so that costs incurred before reallocation would be treated as fast-track costs. The judge asked what order would originally have been made had the relevant costs rules been appreciated.