The Stephens Island Wren is no more. It has gone. Extinct. Wiped out. Destroyed. And, at least according to folklore, by a cat named Tibbles. That’s not really relevant to the case of Tibbles v SIG Plc [2012] EWCA Civ 518, but, as this is my blog post, I can take a Denning-esque introduction if I’d like. It’s sunny today. Bluebell time in Kent…

Back to reality. Just a short note on Tibbles (the case, not the cat). It’s about the power of the court to “vary or revoke” an order under CPR 3.1(7). The case was a low-value PI claim. The DJ initially allocated the case to the small claims track but was eventually persuaded (just) to reallocate it to the fast track. When re-allocating, no specific order was made in respect of the pre-re-allocation costs. At trial, Mr Tibbles recovered £75o plus costs, to be assessed if not agreed.

The costs could not be agreed and so fell to be assessed. A point was taken by the defendant that it could not be liable for the pre-re-allocation costs. CPR 44.11 provided for those costs to be dealt with under the small claims rules. Mr Tibbles was dissatisfied with this and applied to vary the re-allocation order so as to make provision for the pre-re-allocation costs. The DJ agreed to the application, with the event that those costs were then also payable by the defendant. He purported to use his powers under CPR 3.1(7). An appeal to the Circuit Judge was allowed.

And so the case came before the Court of Appeal. How and when should CPR 3.1(7) be used? Was this an appropriate case? After reviewing the authorities, the Court set out(at [39]) the following propositions

(a) CPR 3.1(7) was broad and unfettered, but considerations of finality, the undesirability of two bits at the cherry and undermining the appeal process all pointed towards curtailment of the power.

(b) Whilst there could be no absolute rule on this, CPR 3.1(7) was normally appropriate only in cases involving a material change in circumstances or a misstatement of the facts underpinning the original decision.

(c) The previous caselaw on CPR 3.1(7) (and this judgment) should not be read as if they were a statute with exhaustive definitions.

(d) Context was everything and all cases would turn on their facts.

(e) Having said that, it was unlikely that merely thinking of a new argument would be a good reason to use the power.

(f) Manifest mistake might, however, be one example of a situation where the power should be used.

(g) It would normally take something “out of the ordinary” to lead to variation or revocation, especially in the absence of a change of circumstances.

The Court went on to stress that applications would need to be made promptly. In the present case, it should not have been used.

Lewison LJ added a short (but important) point about how this would interact with the slip rule (which, he suggested, may be much broader that most people think).*

So, there we have it. CPR 3.1(7) in a nut-shell. I’m off to mourn the wren.

* I love it when Lewison does this. I’ve read a couple of judgments from him recently, when almost as a casual afterthought, he demonstrates his prodigious learning by casually throwing in a decision from the 18th century that is directly on point. He could simply have a very good Judicial Assistant but I rather suspect that the case has been plucked from his enormous brain.