Oyston & Anor v Rubin & Anor (Rev 1)

The court may revisit an earlier case-management or judicial-allocation order where there has been a material change in circumstances. Whether the change is sufficient is fact-sensitive and depends on the nature of the order, subsequent events, reliance and prejudice. A change brought about by a party is not automatically abusive. The court may consider it where doing so promotes the efficient allocation of judicial resources and does not cause manifest unfairness or bring the administration of justice into disrepute. In cases involving related proceedings, it may allocate them to the judge with detailed knowledge of the underlying litigation, particularly where issues overlap. The court’s power to revise an allocation decision may also exist without a material change of circumstances, subject to fairness and any material prejudice.

The claimants appealed against an order of Master Clark dated 19 June 2020. The order directed that their Part 8 claim challenging the final account of receivers appointed by way of equitable execution should be heard by Marcus Smith J together with an application by the receivers concerning the interpretation and effect of the receivership order.

A Deputy Master had previously directed that the Part 8 claim be listed before a master. The subsequent declaration application, the judge’s availability, and changes in counsel’s availability led Master Clark to revisit that allocation under CPR 3.1(7). The central issues were whether she had jurisdiction to do so, whether the relevant circumstances were material, and whether the respondents’ conduct in bringing the declaration application was abusive.

1. Appeal dismissed. The Master had jurisdiction to revisit the Deputy Master’s allocation order. The appeal was dismissed on the principal jurisdictional ground, and the remaining grounds would also have failed.

2. Under CPR 3.1(7), the power to reopen an order is highly fact-sensitive. The court must consider the nature of the order, what has happened since it was made, reliance on the order and any resulting prejudice. The Master was entitled to find three material changes: the declaration application had been issued, Marcus Smith J’s availability had become clear, and alternative junior counsel was available for an earlier hearing.

3. A party’s own conduct does not automatically prevent reliance on a changed circumstance. Applying the principles discussed in JSC VTB Bank v Skurikhin [2020] EWCA Civ 1337, the question is whether the conduct is manifestly unfair or brings the administration of justice into disrepute. The respondents had not issued the declaration application for the purpose of upsetting the earlier order, and the court itself had decided to revisit the allocation. Their conduct was therefore not abusive.

4. The allocation decision was also substantively correct. Efficient deployment of judicial resources is an aspect of the administration of justice. Marcus Smith J had extensive knowledge of the receivership, and the two sets of proceedings involved overlapping questions concerning the construction of the receivership order and the reasonableness and proportionality of fees and expenses.

5. Although the court proceeded on the assumption that a material change was required, it added that such a change may not in fact be necessary for a revised judicial-allocation decision. The court may act of its own motion, provided that fairness and any material prejudice are properly considered.

6. The respondents were awarded indemnity costs. The costs were summarily assessed at £52,840 plus VAT, payable within 14 days.

• High Court (Chancery Division): Master Clark ordered on 19 June 2020 that the Part 8 claim be heard by Marcus Smith J together with the receivers’ declaration application. Permission to appeal was refused by Master Clark and Falk J, but granted after renewal by Adam Johnson J.
• High Court (Chancery Division): the appeal was dismissed. The order allocating the proceedings to Marcus Smith J was upheld.