Midland Premier Properties Limited & Anor v Rakesh Singh Doal & Ors

An application to revisit an interlocutory sanction order is governed by a broad but principled discretion. The usual gateways are a material change of circumstances, a material misstatement of the facts, a manifest mistake, or a prompt application concerning an issue genuinely overlooked when the order was made. An omission to advance a point which was reasonably available, followed by substantial delay and repeated applications for similar relief, may itself make the application abusive.

The court must balance finality, efficient use of court resources, fairness and participation in the proceedings. Article 6 does not create an additional test where the applicable procedural principles already give effect to the right to a fair hearing. The serious consequences of a sanction do not outweigh delay, lack of good reason and prejudice to the opposing party.

The 2nd to 6th Defendants applied under CPR 3.1(7), and alternatively for partial relief from sanctions, seeking to vary an unless order and debarring order so that they were debarred from contesting liability but could participate in the later quantum proceedings. They also sought, in the alternative, a retrial of the liability trial.

The court had previously refused relief from the sanction and dismissed an earlier application seeking relief connected with the quantum issue. The Defendants had permission to appeal the debarring order. The central questions were whether the present application was abusive, whether any recognised basis for revisiting the orders existed, and whether the discretion should nevertheless be exercised in the interests of fairness and Article 6.

1. Abuse of process. The application was abusive. Under Johnson v Gore Wood & Co [2002] 2 AC 1 and Koza Ltd and another v Koza Altin Isletmeleri AS [2021] 1 WLR 170, the question is whether, in all the circumstances, the applicant is misusing the court’s process. The Claimant bore the burden of proof. Interlocutory proceedings do not attract a different test, although the balance may reflect their reduced finality and cost.
2. The Defendants knew, or should have known, that the sanction arguably extended to the quantum issue. They should have raised every reasonably available ground in their earlier applications. Their tactical decision not to include a CPR 3.1(7) application, followed by delay of more than six months and the bringing of successive applications for substantially the same relief, was a strong factor supporting abuse. The public interest in finality and conserving court resources, and the Claimant’s interest in avoiding vexation and prejudice, outweighed the Defendants’ interest in participating in the quantum proceedings.
3. Under Tibbles v SIG Plc [2012] EWCA Civ 518, CPR 3.1(7) is broad but subject to principled limits. It will normally be engaged by a material change of circumstances or a misstatement of material facts. It may also apply where a matter was genuinely overlooked, or where the order contained a manifest mistake, but successful invocation is rare and promptness is important. The court must ask what should be done when the application is heard, taking account of delay, explanations, new evidence and prejudice, not what order would have been made originally with hindsight.
4. The court accepted that the inadvertent omission of the quantum issue engaged the discretion in principle. It did not accept that the orders contained a manifest mistake: they accurately reflected the judge’s intention. Nor was there any misstatement of fact or argument. The alleged failure to raise partial relief was an omission, not a misstatement. The alleged misrepresentation concerning readiness for the liability trial was not established and, in any event, would not have materially affected the earlier sanction decision.
5. Article 6 of the ECHR and the Human Rights Act 1998 did not require a separate proportionality test. The principles established by the Court of Appeal and Supreme Court for CPR 3.1(7) and CPR 3.9 were themselves to be applied compatibly with Article 6. The court’s earlier observation that partial relief would have been granted had it been sought at the original hearing did not determine what should be done after the Defendants’ delay and the prejudice caused.
6. The discretion was therefore not exercised. The application, including the requests for variation, partial relief and a retrial, was dismissed.

The judgment records that the Defendants had permission to appeal the order of 13 September 2024, which imposed the debarring order and refused relief from sanctions. The present application was a further first-instance application under CPR 3.1(7) and CPR 3.9, and was dismissed.