John Riordan & Ors v Moon Beever Solicitors

The power under rule 3.1(7) of the Civil Procedure Rules 1998 to vary or revoke an order is generally available only where there has been a material change of circumstances since the order, or where the facts on which it was made were misstated. A party cannot establish a material change merely by repeating circumstances existing when a consent order was made. A proposed variation permitting payment by instalments requires evidence that the alternative arrangement is realistic. Where neither condition is established, the consent order should stand.

The claimants sought to set aside paragraphs of a consent order dated 17 October 2017 and an order dated 20 April 2022. The 2017 order permitted detailed assessment of the defendant solicitors’ bill, conditional on payment of £650,000. The detailed assessment proceedings were later stayed while the claimants considered a professional negligence claim. After that claim was struck out and permission for a further appeal was refused, the payment condition expired and the proceedings were dismissed.

The first claimant contended that the defendants had obstructed attempts to raise the required funds and sought relief under rule 3.1(7), alternatively proposing payment by instalments.

1. Application dismissed. The court applied the general rule under rule 3.1(7) of the Civil Procedure Rules 1998, identified in Tibbles v SIG Plc [2012] 1 W.L.R. 2591: the power to vary or revoke an order may generally be exercised only where there has been a material change of circumstances since the order, or where the facts on which the order was made were misstated.
2. There had been no material change in circumstances. The defendants’ charges secured all sums due under their bill, not merely the £650,000 condition. Their refusal to release security without retaining adequate security for the balance was reasonable. The evidence did not establish that the defendants had prevented the claimants from obtaining funding.
3. The documents suggested that the funding proposals had never progressed beyond an outline. The claimants therefore had neither shown a new circumstance undermining the 2017 order nor provided a realistic route to compliance with its payment condition.
4. The consent order represented probably the best order the claimants could have obtained after failing to prosecute the assessment proceedings. Its terms were clear, and there was no suggestion that the first claimant misunderstood them. The court accordingly found no good reason to set it aside or vary it.
5. The alternative proposal for payment by instalments was unsupported by evidence showing that it was more realistic than the original condition. The claimants were ordered to pay the defendants’ costs of the application, assessed at £11,978.

• Senior Courts Costs Office: The detailed assessment proceedings were subject to a stay and were ultimately dismissed when the payment condition in the consent order expired.
• High Court: Foskett J upheld the stay of the detailed assessment proceedings in [2018] EWHC 1452 (QB).
• High Court: A professional negligence claim was struck out, and a subsequent appeal was dismissed. Permission for a second appeal was refused by Newey LJ. The present application to set aside or vary the orders was dismissed.