Craft Development SCI v Actis LLP & Ors

Variation or revocation of an order under CPR 3.1(7) is ordinarily justified only by a material change of circumstances, a material misstatement or omission affecting the original decision, or a manifest error in the order. The jurisdiction remains broad, but finality, the prohibition on having two bites at the cherry and the appellate process impose principled limits.

On a security for costs application, the merits should generally be disregarded. They may be considered only where success or failure is certain or almost certain without detailed investigation of evidence or law. A party cannot use a later evidential development to obtain a mini-trial or to focus on an isolated issue.

Where security remains unpaid, an unless order may be proportionate if the claimant has a fair opportunity to comply and striking out is justified by the circumstances.

The claimant, a Cameroonian company, brought proceedings concerning a proposed joint venture and the development of a shopping mall in Douala. Stacey J ordered security for costs of £300,000, payable in three tranches, following her judgment on the defendants’ application for security: [2025] EWHC 1355 (KB).

The claimant made no payment and applied to revoke or vary that order under CPR 3.1(7), relying principally on the defendants’ withdrawal of a non-admission concerning the validity of an extension to a Promesse de Vente. It also sought variation of an earlier costs order made by Morris J and opposed an unless order sought by the defendants.

The central issues were whether the later withdrawal constituted a material change of circumstances, whether detailed assessment should occur before the end of the proceedings, and whether non-payment justified an unless order.

1. CPR 3.1(7). The rule gives the court power to vary or revoke its orders, but its exercise is subject to principled limits. The primary circumstances are a material change of circumstances or a material misstatement of the facts or arguments on which the original order was made. The categories are not exhaustive. The remedy remains rare because of the importance of finality and the need to avoid an indirect appeal or a second attempt at the same application. This approach was taken from Tibbles v SIG plc [2012] EWCA Civ 518.
2. The withdrawal of the non-admission concerning the validity of the extension of the Promesse de Vente was a material change only to the extent that it removed the need for expert evidence on Cameroonian law. The parties’ agreed reduction of the security by £74,000 was therefore ordered.
3. The withdrawal did not establish a high probability of success on the claim. The merits of a security application should be investigated only in the clearest cases. A detailed examination of evidence and law, or consideration of an isolated issue, would improperly convert the application into a mini-trial. The position remained governed by the pleaded case, particularly the defendants’ wider case concerning the claimant’s alleged renunciation and inability to perform.
4. The defendants were not under a private-law duty to alert the claimant to relevant material. The document had also been disclosed before the security hearing and could have been deployed then. There was no material misstatement requiring revocation.
5. The application to vary Morris J’s costs order failed. No relevant material change had occurred, and immediate detailed assessment would be lengthy, costly and disruptive. The general rule that detailed assessment should take place after conclusion of the proceedings applied.
6. The claimant was in breach of the security order. A stay was inappropriate because it would leave the litigation uncertain. An unless order was proportionate, provided a sufficient period for compliance. Unless £226,000 was paid within six weeks of hand-down, the claim would be struck out. The parties were invited to agree the consequential order.

The judgment was a first-instance decision on applications arising from Stacey J’s security for costs order and Morris J’s earlier costs order in the same proceedings. The judgment records that permission to appeal Stacey J’s order was refused and that the claimant did not seek permission from the Court of Appeal.