Malik & Ors, R (on the application of) v Manchester and Salford Magistrates' Court & Ors

A final order may be varied retrospectively in exceptional circumstances, having regard to finality in litigation and the need to prevent a second attempt to reopen decided issues. The relevant question is what justice requires when the variation application is made, including delay, explanation, prejudice and any change of circumstances.

A one-day failure to comply with a time limit may properly be approached as a relief-from-sanctions application where the underlying merits remain unresolved. The court may extend time to enable a properly reasoned application to be determined on its merits, despite serious procedural errors by the applicant.

The claimants challenged search warrants issued under the Police and Criminal Evidence Act 1984. The warrants were quashed, and the Divisional Court ordered the Secretary of State either to return seized property within 56 days or to apply to the Crown Court under section 59 of the Criminal Justice and Police Act 2001.

The Secretary of State filed the section 59 application one day late and retained the property. A later application to vary the order was made without effective notice to the claimants, and an order extending the period to 58 days was made without their participation. The present court considered the application afresh, addressing the principles governing variation of final orders and whether the delay should be treated as a relief-from-sanctions issue.

1. Variation of the order. The order requiring a section 59 application within 56 days was final. Finality, the undesirability of giving a litigant two bites at the cherry, and the need not to undermine appeals ordinarily restrict the power to vary an order. The authorities identify circumstances such as a material change of circumstances, an innocent or other misstatement of the facts, or a manifest judicial mistake. The court must nevertheless consider the position at the date of the variation application, including delay, its explanation and prejudice.
2. Distinction from the authorities. Tibbles v SIG plc and Thevarajah v Riordan concerned attempts to rewind litigation or obtain a further opportunity after an earlier refusal of relief. The Panesar/Windsor litigation likewise concerned finality after a fully argued decision on search warrants. Those cases did not govern a one-day delay in making an application which the court considered should be determined on its merits.
3. Relief granted. The Secretary of State’s conduct involved a series of serious errors: the late and initially unsupported section 59 application, unlawful retention of the seized material, delay in seeking variation and defective notification of the variation application. The errors were accepted and were not deliberate or reckless. The court considered it preferable for the Crown Court to determine a reasoned and particularised section 59 application with the material before it and with the claimants able to respond. Retrospective variation was therefore justified.
4. The order made by Supperstone J was set aside. The original order was varied by substituting 58 days for 56 days in paragraph 3. The remaining provisions were unchanged. There was no order as to the costs of the application, and the earlier costs order of £250 was set aside. The question of permission to appeal and the appropriate appellate jurisdiction was left for written submissions.

The judgment describes the earlier Divisional Court order made on 29 November 2016, which quashed the warrants and imposed the 56-day requirement. The present court reconsidered and varied that order after setting aside an earlier variation made without effective notice.