R A, R (on the application of) v The Director of Public Prosecutions

Final orders may be varied or revoked under CPR Part 3.1(7) only on proper, exceptional grounds. The rule does not permit a judge to rehear an appeal from their own final decision. Relevant grounds may include an order founded on erroneous information or subsequent events destroying its basis, but those grounds do not automatically justify reopening a final order.

Where a party has notice of an application dealt with on the papers, failure to participate without good explanation is a powerful reason for refusing relief. A later challenge cannot be used to advance merits-based arguments which could and should have been made before the original order. The finality of litigation and the need for parties to co-operate with the court remain important public interests.

RA brought judicial review proceedings seeking a charging decision from the Director of Public Prosecutions. At an earlier hearing, the DPP undertook to make that decision by 30 November 2015. Permission was refused subject to the undertaking, and the charging decision was made before the deadline.

Costs were left open. After the Administrative Court Office repeatedly sought engagement, Deputy High Court Judges made orders dealing with costs. RA was awarded £20,000 by the Goudie Order, while the Rose Order provided that there should be no order for payment of the DPP’s costs.

The DPP applied under CPR Part 3.1(7) to set aside or vary both orders, arguing that the earlier order had been misunderstood, that the judicial review had not caused the charging decision, and that the undertaking did not indicate merit. The central issue was whether those matters justified reopening the costs orders.

1. The application was dismissed. The Goudie Order was a final order. Because the DPP had been served with RA’s costs application, CPR Part 23.10(1) could not be used to set it aside. The only relevant power was CPR Part 3.1(7).
2. That power cannot be used to enable a judge to hear an appeal from their own final order. The authorities, including Roult v North West Strategic Health Authority [2010] 1 WLR 487, establish the importance of finality. Although erroneous information or subsequent events may sometimes justify intervention, a final order remains final unless proper grounds for appeal or exceptional grounds for variation exist.
3. The court adopted the approach in Hackney London Borough Council v Findlay [2011] EWCA Civ 8: a party seeking to reopen an order must provide a good explanation for failing to participate, act promptly after learning of the order, and show a real prospect of success. The DPP acted promptly after the Goudie Order, but had no good explanation for ignoring communications from RA and the Administrative Court Office for more than a year.
4. The DPP’s arguments that the earlier order only contemplated recovery of its costs, that the judicial review had no causative effect, and that the undertaking was merely part of its statutory function were merits arguments. They could and should have been made before the costs orders were made. They did not justify reopening the Goudie Order.
5. The Rose Order was treated as an interim order for the purposes of the application. The principles in Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen [2003] EWHC 1740 (Ch) and Woodhouse v Consignia plc [2002] EWCA Civ 275 did not assist the DPP. There had been no material change of circumstances and Deputy High Court Judge Rose had not been misled.
6. Neither order was varied or revoked. The unusual burden placed on public funds did not constitute proper grounds under CPR Part 3.1(7).

The judgment describes earlier stages of the same judicial review proceedings. High Court (Administrative Court): Collins J refused permission subject to the DPP’s undertaking to make a charging decision by 30 November 2015. Deputy High Court Judge Rose later made the Rose Order on costs. Deputy High Court Judge Goudie then made the Goudie Order awarding RA £20,000. The present court dismissed the DPP’s application to set aside or vary those orders.