Khan & Anor, Re Criminal Justice Act 1988

The power under CPR r.3.1(7) to vary or revoke an order is discretionary and must be exercised consistently with finality and the overriding objective. Criticism of an earlier decision belongs in an appeal. Relief will normally require a material change of circumstances or a material misstatement of the facts underlying the order. A final order requires exceptional circumstances. A consent order requires, in addition, a vitiating factor capable of avoiding the underlying compromise. An imprudent or irrational decision to settle, without incapacity or another recognised vitiating factor, is insufficient. A settlement concerning a confiscation order may lawfully regulate the sum recoverable and the prosecution’s position on an application under section 83 of the Criminal Justice Act 1988.

The applicants were brothers subject to confiscation orders under the Criminal Justice Act 1988. The Crown Prosecution Service obtained an enforcement receiver order over a jointly registered flat. The order was made by consent after settlement terms under which Mikail agreed to pay specified sums and the CPS agreed not to oppose Aftaab’s application for a certificate of inadequacy.

Mikail later applied under CPR r.3.1(7) to revoke the consent order. He argued that illness, pressure and the circumstances of settlement had caused him to make an irrational decision, and that the agreement concerning Aftaab’s certificate was unlawful. The central issues were whether the consent order could be reopened and whether the settlement unlawfully restricted the operation of section 83.

1. Application dismissed. The order finally disposing of the CPS’s application for an enforcement receiver had been made by consent. The applicant therefore faced a particularly high hurdle under CPR r.3.1(7).
2. The discretion under r.3.1(7) is limited by the public interest in finality and by the need not to create an alternative appeal route. It is normally exercised only where there has been a material change of circumstances or the facts underlying the original decision were misstated. Final orders require exceptional circumstances. Consent orders require a vitiating factor which would permit avoidance of the underlying compromise.
3. The assertion that Mikail had made an irrational decision was insufficient. The settlement produced substantial benefits, including avoiding findings about the brothers’ respective interests, limiting recovery, avoiding adverse costs and allowing time to raise funds. The evidence did not establish that Mikail lacked capacity or was unable to receive advice or give instructions. No misrepresentation, fraud, undue influence or actionable mistake was advanced.
4. The agreement concerning Aftaab’s certificate was not unlawful. Section 83 of the Criminal Justice Act 1988 permits a defendant to seek a certificate where realisable property is inadequate. Construed so as to permit lawful performance, the settlement accepted that Aftaab’s interest available for enforcement was limited to £86,183.50. The CPS could therefore agree not to oppose an application under section 83 after payment of that sum.
5. The possibility that Aftaab might later be found to have hidden assets did not make the settlement unlawful. It might affect the CPS’s ability to rely on its agreement, but it did not provide Mikail with grounds to revoke the consent order.

The judgment records that the enforcement receiver order was made by consent before Julian Knowles J on 7 March 2018. The present application to revoke that order was dismissed.