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"To set aside or to appeal"…that is the question

08 February 2024

Following the Court of Appeal decision in Vodafone Group Plc v IPcom GmbH and Co KG [2023] ("Vodafone"), our Finance Disputes and Regulatory team considers the ability of a Court to set aside a final order.

It is often the case that a case management decision in respect of a procedural aspect of a case goes against you and that in fact, the consequence of the decision may be that the case is effectively concluded. Indeed, it may be that the decision represents a final order. Once sealed by the Court, there are limited routes by which you can re-visit a final order made. Regardless of the merits of your case, it is vital to understand the correct route (and the limitations).

Following the Court of Appeal decision in Vodafone Group Plc v IPcom GmbH and Co KG [2023] ("Vodafone"), this article considers the ability of a Court to set aside a final order.

Set aside

Rule 3.1(7) of the Civil Procedure Rules ('CPR') provides "a power of the court under [the CPR] to make an order includes a power to vary or revoke the order." In respect of final orders, there is a very limited discretion. That is even in a case where there appears to be clear injustice to the party adversely affected by the order made, whether in the light of a subsequent event; or even where erroneous evidence was given previously. In those circumstances, the applicant should properly be considering an appeal under Part 52 CPR.

The authorities dealing with the Court's discretion to set aside clearly establish that the jurisdiction to revoke a final sealed order is extremely limited, if indeed it exists at all.

In Roult v North West Strategic Health Authority [2010] 1 WLR 487, Lord Justice Hughes expressed the following views at §15:

“There is scant authority upon rule 3.1(7) but such as exists is unanimous in holding that it cannot constitute a power in a judge to hear an appeal from himself in respect of a final order…. it does not follow that wherever one or other of the two assertions mentioned (erroneous information and subsequent event) can be made, then any party can return to the trial judge and ask him to reopen any decision. In particular, it does not follow, I have no doubt, where the judge's order is a final one disposing of the case, whether in whole or in part. …. The interests of justice, and of litigants generally, require that a final order remains such unless proper grounds for appeal exist”

In Daniel Terry v BCS Corporate Acceptances Limited, BCS Offshore Funding Limited, John Taylor [2018] EWCA Civ 2422, Lord Justice Hamblin reviewed the authorities relating to CPR 3.1(7) and provided the following summary at §75:

“…. the circumstances in which CPR 3.1(7) can be relied upon to vary or revoke an interim order are limited. Normally, it will require a material change of circumstances since the order was made, or the facts on which the original decision was made being misstated. General considerations such as these will not, however, justify varying or revoking a final order. The circumstances in which that will be done are likely to be very rare given the importance of finality.”

The recent decision in Vodafone amplifies the point, where Lewison LJ reviewed the existing authorities and concluded (at §54):

"The overwhelming thrust of the authorities is that the court’s power under CPR rule 3.1 (7) to vary or revoke orders either cannot or should not be used to discharge a sealed final order. The only limited exception thus far even contemplated in civil proceedings is the case of a continuing order (such as a final injunction)."


So, if you have been adversely affected by a final order, even on an interim application (i.e. not at a Trial), if it is a final sealed order, it is unlikely that the set aside route will be correct. That is the case even if the order appears to cause clear injustice. In those circumstances, you need to think about an appeal.

However, in respect of an interim case management order, you must be aware that if the decision in question was a case management decision, an appellate court will only interfere if the Judge was plainly wrong and it is a well-established principle that the threshold for such an appeal is high - see Royal & Sun Alliance Insurance plc v T & N Ltd [2002] EWCA Civ 1964: Chadwick LJ at §38 and Arden LJ at §47:

"47. The principle that an appellate court should only interfere in matters of case management where a judge is plainly wrong is well-established and has been emphasised on many occasions since the introduction of the CPR. Case management should not be interrupted by interim appeals as this will lead to satellite litigation and delays in the litigation process. Moreover, the judge dealing with case management is often better equipped to deal with case management issues.”

This principle encompasses case management decisions, which themselves bring litigation to a close.  In a recent decision, Sangha v Amicus Finance PLC [2020] EWHC 1074 (Ch) at paragraph 56,  Zacaroli J refused to interfere with the decision of a Deputy District Judge who dismissed an application to set aside a possession order under CPR 3.1(7), holding that:

"An appeal against an exercise of discretion can only succeed if it is established that the judge exceeded the generous ambit within which reasonable disagreement is possible, for example because the judge took into account or left out of account relevant or irrelevant material as the case may be."

Appeals are a whole other area. In short, appeals and applications to set aside both involve complex areas of procedural law and it is vital to get it right because of the consequences of getting it wrong.

DWF's Finance Disputes and Regulatory team has experience and expertise in complex civil litigation. If you have any questions or the matters discussed in our article might apply to you, please reach out to the authors below.

Further Reading