Under CPR 3.1(7) the court has a general case management power to vary or revoke its previous orders. The Court of Appeal has considered CPR 3.1(7) on a number of occasions, including in Tibbles v SIG Plc [2012] EWCA Civ 518. For applications made under this provision, the considerations of finality, the undesirability permitting the re-litigation of a case, and the need to avoid an ‘appeal via the back door’ all fetter the discretion. The grounds are narrow and usually confined to instances:

(i)             where there has been a material change of circumstances since the order was made;

(ii)            where the facts on which the original decision was made had been misstated; or

(iii)          where there has been a manifest mistake on the part of the judge in formulating the order.

The Court has considered the need to distinguish applications made under CPR 3.1(7) from applications for relief from sanctions, and has emphasised the need to maintain this distinction – Haley v Siddiqui & Ors [2014] EWHC 835 (Ch)

If an application is made to set aside an Order made without a hearing or without notice, do the narrow grounds from 3.1(7) and the Tibbles case apply? The Court has answered, in Haley that they do not. The rationale is that, because the parties have not had the opportunity to make representations to the court before an order was made without a hearing, or of the court’s own initiative, the parties are entitled to invite the court to review its initial decision.

It remains to be seen whether there could be any serious distinction could be drawn between Orders which were made without notice to a party, and Orders made without a hearing. The Court of Appeal cases currently suggest that there would probably not be different consequences resulting from the two different provenances of such Orders.