The Court has the power under CPR 3.3 to make an Order without a hearing. The most common circumstance is where the Court considers the parties’ direction questionnaires and issues a directions order.
This could be prejudicial as neither party has made any representations to the Court about the other party’s questionnaire. There is however a mechanism that is contained within CPR 3.3(5) that allows any party affected by the Order to apply to vary, set it aside or stayed. The default time, in the absence of any timeframe given by the Order, is seven days of service.
It is not limited to these circumstances. In accordance with CPR 23.8 an application can be considered without a hearing if:-
- the terms being sorted are consented to (a consent Order)
- the parties agree to the application being dealt with on paper, or
- The Court does not consider a hearing appropriate.
So if a party thinks the Judge making the Order without a hearing has erred, how do they go about remedying it? One would presume an application to set aside. That may not always be the case.
Power to set aside if you have been unable to make representations
A party makes an application for an Order either on a without notice basis and is considered without a hearing. The Respondent gets an Order as a result. The Respondent should have an unfettered right to apply to vary, stay or set aside the Order on the basis they were unable to make any representations.
They must make that application within seven days of service in accordance with CPR (or within the time scale given by the Court). That application will be on notice and must be heard at a hearing.
That is usually a correct one. If you were the Applicant however and you did not like the outcome and requested the application to be heard without a hearing then you do not have a right under CPR 23.10 to apply to vary, stay or set aside the Order. If that is the case, your only redress is an appeal in accordance with CPR 52.
Tibbles v SIG – the exceptions to the rule
The Court of Appeal decision of Tibbles v SIG Plc (t/a Asphaltic Roofing Supplies) [2012] EWCA Civ 518 gave rise to a specific set of circumstances where an application could be made to set aside an Order instead of a party issuing an appeal.
In Tibbles, a party realised that an Order regarding re-allocation from the Small Claims Track to the Fast Track did not account for £20,000 of costs already incurred. After settlement, the Claimant attempted to apply to vary the Order. At first instance the Order was varied accordingly. The Defendant appeal successfully and then the Claimant appealed to the Court of Appeal.
The Court of Appeal had to consider the finality of CPR 3.1(7) and acknowledged that the rule was broad and unfettered but should not undermine the premise that a party should appeal a decision rather than set aside an Order.
The Claimant’s appeal was unsuccessful and the Court of Appeal set out the circumstances where an application to set aside an Order would be appropriate, namely where
- there is a material change of circumstances since the order was made, or
- the facts on by the Court to make the original order were misstated (innocently or otherwise)
The Court of Appeal also indicated that if there was a genuine error or an oversight by the parties or Court after the Order was made then a prompt application under CPR 3.1(7) may be made. The more time passed, the less likely the Court would accede to such a request for remedy.
The above is more akin to a slip rule amendment and wouldn’t be appropriate for a party that did not like the outcome of an application.
Avoid requesting applications to be considered without a hearing unless absolutely necessary
There will be times where an application ought to not be considered at a hearing or time is of the essence. There is an absolute risk of falling into the above trap if you make an application, asking the Court to deal without a hearing and then feel aggrieved when the outcome is not to your liking.
If you were to apply for relief from sanctions (for example) because you missed a hearing fee in error and the Judge dismisses the application on paper (as you asked for the application to be considered without a hearing), then you may find if you make an application under CPR 3.1(7) and/or CPR 23.10 that you will fall foul of Tibbles.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.