Apex Global Management & Or v Global Torch Ltd & Ors

Variation of an order under CPR 3.1(7) is subject to principled limits. The jurisdiction should normally be exercised only where there has been a material change of circumstances or the facts on which the original decision was based were materially misstated. It is not a means of avoiding the consequences of a party’s earlier litigation choices or obtaining a second determination of an interlocutory issue. A claimed error of law in the original order should ordinarily be addressed by appeal, not by an application for variation to a court of equivalent jurisdiction. The need for expedition, serious consequences, or the loss of an appeal opportunity does not itself justify variation.

The petitioners applied to vary an earlier order made by Vos J concerning electronic disclosure and to obtain relief from sanctions. The order required the third respondent, Prince Abdulaziz, personally to sign the relevant disclosure statement. He had not complied, relying on an alleged Saudi royal protocol against princes personally signing such documents or giving evidence. Norris J subsequently made an unless order, and default judgment was entered after non-compliance.

The application challenged the original order on the basis that the protocol and alternative means of verification had been misunderstood or insufficiently considered. The central issue was whether the original order could properly be revisited under CPR 3.1(7), rather than challenged by appeal.

1. The application for variation was refused. The challenge to the unless order and resulting judgment could not proceed because successfully attacking Vos J’s order was a necessary prerequisite.
2. CPR 3.1(7) confers a power to vary or revoke an order, but that power is curtailed by the need for finality, certainty, and respect for the appellate process. Applying the principles in Tibbles v SIG plc [2012] 1 WLR 2591, the usual grounds are a material change of circumstances or a material misstatement of the facts underlying the original decision.
3. There had been no material change of circumstances and no material misstatement. Vos J was aware of the alleged protocol and had the relevant issue before him. The further evidence and proposed solicitor-supported mechanism were attempts to avoid the consequences of the order, not new facts unknown to the original judge.
4. Any complaint that Vos J had misunderstood the legal requirements concerning personal signatures was an alleged error of law. A court of equivalent jurisdiction should not revisit that issue by variation; the appropriate route was an appeal.
5. The application was not made more appropriate by the seriousness of the judgment, the impending trial, or the fact that an appeal might be out of time. The court therefore declined to order any further hearing of the challenges to Norris J’s order and the judgment. A possible stay was left for consideration on another occasion if it could be shown to form part of the application.