Kazakhstan Kagazy Plc & Ors v Zhunus & Ors

Under Civil Procedure Rules 1998, r 3.1(7), reconsideration after a contested inter partes decision is ordinarily confined to a material change of circumstances, a material misstatement of the facts, or a manifest mistake in the order. It is not a general opportunity to reargue an unsuccessful application. A confidentiality order must be construed by its operative terms. An order restraining disclosure of the existence or contents of an application or order does not necessarily restrain disclosure of underlying information, where that disclosure would not reveal the protected matters. Specific disclosure is not justified where the documents are unnecessary to determine the reconsideration application, and the ordinary disclosure provisions may not apply during the Disclosure Pilot.

The claimants had obtained judgment against charging order respondents after their pleaded allegations were struck out for non-compliance with an unless order. The respondents then applied under Civil Procedure Rules 1998, r 3.1(7), to revoke or vary the earlier orders. They argued that a Cypriot confidentiality order showed that the claimants’ solicitors had misstated the position concerning alleged gagging orders and explained the respondents’ failure to provide further information.

The respondents also sought disclosure of the Cypriot application, supporting affidavit and exhibits under CPR 31.12 and CPR 31.14. The central issues were whether there had been a material misstatement or material change of circumstances, what the Cypriot order prohibited, and whether the requested documents were necessary for a fair determination.

1. Applications dismissed. The applications under Civil Procedure Rules 1998, r 3.1(7), and for specific disclosure failed.
2. Following Tibbles v SIG plc [2012] EWCA Civ 518, [2012] 1 WLR 2591, reconsideration after a contested inter partes process is ordinarily appropriate only for a material change of circumstances, a material misstatement of the facts, or a manifest mistake in the formulation of the order. CPR 3.1(7) does not permit a litigant to take two bites at the cherry.
3. The Cypriot order prohibited disclosure of the existence of the application and order, and of their contents or provisions, pending final determination, subject to legal advice. It did not prohibit former trustees or advisers from giving the respondents information or documents obtained or generated while providing services to the settlements, provided that doing so did not reveal the existence or protected contents of the application or order. The court preferred the claimants’ expert evidence on that construction.
4. There was therefore no misstatement. In any event, knowledge of the Cypriot order was not a material change because the order was irrelevant to the respondents’ pleading defaults. The evidence did not establish that cooperation had ceased because of the order, and the respondents had not shown that it prevented them from providing particulars or withdrawing inadequately particularised allegations.
5. The disclosure applications also failed. The supporting affidavit and exhibits were not necessary to decide the CPR 3.1(7) application. The CPR 31.14 application was misconceived because referring to documents in evidence resisting disclosure did not make that resistance futile. The court also noted that CPR 31.12 and CPR 31.14 did not apply during the Disclosure Pilot under CPR PD51U.
6. The court considered Vernon v Bosley (No 2) [1999] QB 18, but held that it did not require further investigation where the alleged misstatement was neither established nor material to the earlier disposal.

First-instance applications under Civil Procedure Rules 1998, r 3.1(7), CPR 31.12 and CPR 31.14 were dismissed.