Summary

The administration of justice required that there should be finality in litigation at an appropriate stage, and so an application under the CPR r.52.9(1)(c) was refused where it was made very late without a good explanation.

Facts

The applicant (H), which had been ordered to pay the costs of the respondents (G), sought to vary an order that it had to pay into court those sums before it could appeal against an unless order. H had brought an unsuccessful action against G, and the trial judge ordered it to pay their costs. A non-party costs order was also made against H's controlling shareholder (T). However, H did not pay the sums specified, so during the detailed assessment which followed, the costs judge ordered that unless it complied with the earlier costs order, it would be debarred from participating further in that assessment. H applied for permission to appeal against the unless order, and a High Court judge granted permission on condition that it paid into court the sums ordered by the trial judge, plus subsequent costs. Five months after the time limit for compliance with the condition, H brought the instant application for variation under the CPR r.52.9(1)(c) or r.3.1(7), arguing that it was impecunious and a condition should not be imposed if it could not be complied with.

Held

(1) H's application under r.52.9(1)(c) was made very late without a good explanation, and varying the condition would not be in the interests of the administration of justice, which required that there should be finality in litigation at an appropriate stage. That stage had been five months before the application was brought, Sayers v Clarke Walker (2002) EWCA Civ 645, (2002) 1 WLR 3095 and Smith v Brough (2005) EWCA Civ 261, (2006) CP Rep 17 applied. H's application was therefore rejected. However, even if it had been made promptly, it would still have been rejected because although the court ought not to impose a condition which the defendant could not comply with and H did not have any assets to fund an appeal, T would be the beneficiary of any successful appeal by H, and he had not tried to show he lacked the funds, MV Yorke Motors v Edwards (1982) 1 WLR 444 and Ali v Hudson (t/a Hudson Freeman Berg) (2003) EWCA Civ 1793, (2004) CP Rep 15 applied and CIBC Mellon Trust Co v Mora Hotel Corp NV (2002) EWCA Civ 1688, (2003) 1 All ER 564 distinguished. T was not properly to be regarded as a disinterested third party and it would be artificial to distinguish between his financial position and that of H. (2) The power under r.3.1(7) to vary or revoke an order should only be used where there had been a material change of circumstances after the earlier order or where the judge had been misled, Collier v Williams (2006) EWCA Civ 20, (2006) 1 WLR 1945 applied. Neither was a reason for applying that power in the instant case.

Application refused