Walton Family Estates Ltd & Ors v GID Services Ltd & Ors

The power under Civil Procedure Rules 1998, CPR 3.1.7, to vary or revoke an order is broad but subject to principled constraints. It will normally be exercised only where there has been a material change of circumstances or the facts supporting the original decision were misstated. The court must also consider finality, the undesirability of allowing a party a second opportunity to advance its case, and the need not to undermine the appeal process. Material known to a party before the original hearing, but deliberately withheld, will generally not justify revisiting the order. The application failed because the proposed removal method could have been advanced earlier, and the evidence supporting it was in any event inadequate. The resulting unreasonable conduct justified summary assessment of costs on the indemnity basis.

The Eighth Defendant, Japan Sky Services K.K., applied to vary an order governing the removal of two Boeing 747 aircraft from an aerodrome. It sought permission to rely on responsive evidence concerning removal by airlift or other viable means and an extension of time to 15 April 2021.

The order followed an earlier judgment granting summary judgment to the First Claimant and determining that the aircraft had no lawful entitlement to remain after the removal notice expired. The court had refused permission to remove the aircraft by lifting their fuselages onto vehicles for road transport because no practical method had been explained. The central issue was whether the new evidence constituted a material change of circumstances justifying variation of the order.

1. Application dismissed. The court dismissed the application to amend the removal arrangements and extend the removal deadline.
2. CPR 3.1.7 confers a broad power to vary or revoke an order, but its exercise is constrained by the interests of finality, the avoidance of a second opportunity to present a case, and the need not to undermine the right of appeal. The principles in Tibbles v SIG PLC (T/A Asphaltic Roofing Supplies) [2012] EWCA Civ 518 were applied.
3. The primary circumstances in which the power may be exercised are normally a material change of circumstances after the order, or a material misstatement of the facts on which the original decision was based. The categories are not exhaustive, but a conscious decision not to rely on material already available will ordinarily not justify revisiting the order.
4. The proposed airlift method and the supporting report were available before the earlier hearing. JSS consciously chose not to disclose its methodology or seek permission to adduce responsive evidence. That amounted to a change of tactics, not a material change of circumstances.
5. Even if the evidence were considered, it did not provide a proper basis for variation. The proposal involved substantial preparatory dismantlement, multiple helicopters, regulatory permissions, contractual arrangements and arrangements with a receiving airport. There was no evidence that the necessary helicopters or permissions had been secured, and the timetable was aspirational.
6. Permission to appeal was refused on the variation issue. An extension of time to 1 March 2021 was granted for an appeal concerning the removal deadline, but not for the proposed use of the least viable removal method. A stay was refused, with any further application to be made to the Court of Appeal.
7. The Claimants’ costs were summarily assessed on the indemnity basis in the sum of £7,111. JSS’s deliberate withholding of the proposed method and its advancement of a different method which its own evidence described as least viable took the conduct outside the norm.