I had a thought-provoking conversation with my opponent when there was a possibility of an error in an order that was issued after a hearing. It appeared that both my opponent and I might have made arguments based on inaccurate information. It turns out that wasn’t the case. The main concern was, if it turned out the information was indeed incorrect, what would be the next step?
This post discusses what could happen in that situation.
Erroneous decision based on incorrect facts
The purpose of a hearing is to allow the parties the opportunity to present the evidence and arguments to the Court so that it can make the determination. It would be for the parties to ensure that their advocates are instructed with the appropriate information.
If the advocates were not provided with that information, it could lead to an adverse decision based on incorrect facts. Should the Court entertain any sort of procedural action to remedy this?
The Court does have the power to revoke or vary an Order under CPR 3.1(7), but it should be common ground that this would be limited to interim Orders and not final Orders (Prestney v Colchester Corp [No 2] [1883] 24 Ch. D. 376).
What would be an interim Order? Whilst it is evident that an application before a final trial would be an interim, what about a hearing after a trial or after a settlement but has a final outcome that disposes of the case?
Substantially different facts/arguments
The court cannot be used to re-argue a case with the same evidence and submissions. The court’s jurisdiction can only be exercised if the applicant presents new material in the form of evidence or argument.
One example of this is when an application is made on paper without a hearing. The usual mistake is not considering whether or not it is appropriate to apply to set aside an Order under CPR 3.3(5) or whether an appeal should be made. Usually, if the applicant has made an application on paper and it is a decision they disagree with, then it ought to be an appeal. It is usually only an application to vary if the Court has made a decision without the parties’ involvement or the respondent to an application who has been unable to make any submissions.
In Collier v Williams [2006] EWCA Civ 20 the Court of Appeal said any further application should usually be struck out as an abuse of process unless it is based on substantially different material from the earlier application. In those circumstances, an application could make a new application to vary any consequences.
So does it apply to hearings where both parties have made substantive submissions?
Tibbles test
In Tibbles v SIG Plc [2012] EWCA Civ 518 the Court of Appeal were clear that the purpose of CPR 3.1(7) was not to undermine the appeal process. It is intended to allow the remedy of matters that need to be remiedied because either:-
- there has been a material change of circumstances since the order was made, or
- the facts on which the original decision was made were (innocently or otherwise) misstated
So if the parties find out afterwards that there was a material fact that was omitted from the advocates’ briefs and this could change the landscape of the Court’s decision, then there would be grounds to apply to the Court under CPR 3.1(7). However, there were some cavets.
For example, the Court of Appeal said that the Judge has discretion in cases where misstatements or omissions are conscious or unconscious. If the facts or arguments were known or should have been known at the time of the original Order, it is unlikely that the Order can be revisited. It takes something out of the ordinary to vary or revoke an order, especially in the absence of a change of circumstances.
So what does this suggest? To me, if the parties (for example) found correspodnence that may have influenced the Judge’s decision and these were known to the parties, then it is unlikely to trigger CPF 3.1(7) unless it is something so substantial or unusual that it justifies the consideration.
This would not be the same as an oversight by the Court, which would not be a second consideration of something already considered, but rather giving consideration for the first time based on materials already available.
Can it be remedied?
I feel that there will still be an element of question as to whether the Court would have and should have been provided with the information or evidence. I know that if I were acting for a respondent to such an application that I would be aruging that the Court must tread carefully when offering a party to be able to vary an Order based on incorrect information that simply wasn’t supplied by the parties to the Courts or the advocates.
If a party could find additional significant evidence or information and argue that it should have been presented in court, where would the limit be? It is best to gather and file/serve all relevant information at the appropriate time and ensure that your legal representative has access to all pertinent information. This approach is the most sensible one.
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.