1213. Setting aside or varying a judgment or order.

Halsbury's Laws of England > Civil Procedure (Volume 11 (2020), paras 1–496; Volume 12
(2020), paras 497–1206; Volume 12A (2020), paras 1207–1740) > 22. Judgments and Orders > (1)
Procedure

The court has a general power to vary or revoke an order 1. A person who is not a party but who is directly affected 2
by a judgment or order may apply to have the judgment or order set aside3 or varied4.

A judgment which has been obtained by fraud either in the court5 or by one or more of the parties6 may be set
aside7 if challenged in fresh proceedings alleging and proving the fraud 8. In such proceedings it is not sufficient
merely to allege fraud without giving any particulars 9, and the fraud must relate to matters which prima facie would
be a reason for setting the judgment aside if they were established by proof 10, and not to matters which are merely
collateral11. The court requires a strong case to be established before it will set aside a judgment on this ground 12
and the proceedings will be stayed or dismissed as vexatious unless the fraud alleged raises a reasonable prospect
of success and was discovered since the judgment13. Theoretically, it may be true that even a party to a judgment
which has been obtained by fraud is entitled to ask the court to disregard it in subsequent proceedings, but a party
who has taken no proceedings to set the judgment aside would have great difficulty in establishing fraud, and a
party to a consent judgment obtained by fraud must apply to set aside the judgment in order to avoid the estoppel 14.
As a rule a judgment can only be set aside, if at all, against those who procured it by fraud, but this does not apply
to probate proceedings to set aside the probate of a will15.

A judgment may be set aside on the ground of the discovery of new evidence which would have had a material
effect upon the decision of the court16. It must be shown that:
(1) the evidence could not have been obtained with reasonable diligence for use at the trial;
(2) the further evidence is such that, if given, it would have an important influence on the result of the
trial, although it need not be decisive; and
(3) the evidence is such as is presumably to be believed17.

A judgment given or an order made by consent may be set aside on any ground which would invalidate a
compromise not contained in a judgment or order 18. Compromises have been set aside on the ground that the
agreement was illegal as against public policy19, or was obtained by fraud20 or misrepresentation, or non-disclosure
of a material fact which there was an obligation to disclose 21, or by duress22, or was concluded under a mutual
mistake of fact23, ignorance of a material fact24, or without authority25. A compromise in ratification of a contract
which is incapable of being ratified is not enforceable26; and a compromise which is conditional on some term being
carried out, or on the assent of the court or other persons being given to the arrangement, is not enforceable if the
term is not carried out or the assent is given effectually27. The court may refuse to set aside a compromise when the
party seeking to set it aside is guilty of delay in questioning it 28. It has been held that a consent order cannot be set
aside by way of appeal29 but in a recent case the Court of Appeal set aside a consent order in circumstances where
it had been presented with all the information which the judge was likely to have had30.

There is a residual jurisdiction for a court of appeal to re-open a case in exceptional circumstances in order to avoid
real injustice31.
 1213. Setting aside or varying a judgment or order.

1 See CPR 3.1(2)(m), CPR 3.1(7); and PARA 500.

As to the boundaries of the more general powers under CPR 3.1(2)(m) and CPR 3.1(7), and the court's inherent
jurisdiction to set aside final orders (where the issues raised are not fully resolved) see Forcelux v Binnie [2009] EWCA
Civ 854 at [50]-[54] per Warren J (where the court makes a possession order in the absence of the tenant, following
forfeiture of a lease for non-payment of the ground rent, and the tenant subsequently applies to have that order set
aside, the court has a wide discretion under its management powers under CPR 3.1(2)(m) to set aside the possession
order if, in its discretion, it considers that the interests of justice demands it); Hackney LBC v Findlay [2011] EWCA Civ
8 at [18]-[25], [2011] HLR 15 per Arden LJ (in the absence of some unusual and highly compelling factor as in Forcelux
v Binnie, a court that is asked to set aside a possession order under CPR 3.1 should in general apply the requirements
of CPR 39.3(5) by analogy in addition to, and not in derogation of, applying CPR 3.9 by analogy, as in Forcelux v
Binnie, as that provision requires the court to have regard to all the circumstances in any event); Terry v BCS Corporate
Acceptances Ltd [2018] EWCA Civ 2422 at [75] per Hamblen LJ (the circumstances in which CPR 3.1(7) can be relied
upon to vary or revoke an interim order are limited and, 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; circumstances that
will justify varying or revoking a final order are likely to be very rare given the importance of finality); and Salekipour v
Parma [2018] EWCA Civ 2141 at [61]-[69], [2018] QB 833per Sir Terence Etherton MR (no indication that with the
repeal of CCR Ord 37 r 1(1) the County Court lost a jurisdiction it had had since the creation of the court in 1846 to set
aside an order obtained by perjury or fraud, including an order finally disposing of a case in whole or in part). The court
must give great weight to the principle of finality in litigation when determining an application to reconsider a final order
before it has been sealed: AIC Ltd v Federal Airports Authority of Nigeria [2022] UKSC 16, [2022] All ER (D) 42 (Jun).

The present position is that, whether under the Civil Procedure Rules or under its inherent jurisdiction, the court has
power to strike out a statement of case at any stage on the ground that it is an abuse of process of the court, but it will
only do so at the end of a trial in very exceptional circumstances: Terry v BCS Corporate Acceptances Ltd.

2 Despite the apparent breadth of the words 'directly affected', whether a non-party has been directly affected by a
judgment or order needs to be carefully scrutinised for the purposes of CPR 40.9, in the light of the general policy that a
judgment or order should not easily be set aside: Abdelmamoud v The Egyptian Association in Great Britain Ltd [2015]
EWHC 1013 (Ch), [2015] All ER (D) 117 (Apr) (since the 'directly affected' test was for the purpose of establishing locus
standi, it was sufficient that the relevant judgment or order would prima facie be capable of materially and adversely
affecting a legal interest; it was not necessary to show that it would, in fact, do so, since that would be the subject of the
application itself); affd sub nom Mohamed v Egyptian Association in Great Britain Ltd [2018] EWCA Civ 879, [2018] All
ER (D) 120 (Apr) (individual directors/members are not 'directly affected' by a judgment or order against their company
for the purposes of CPR 40.9).

3 As to the meaning of 'set aside' see PARA 229.

4 CPR 40.9.

See Gerrard Ltd v Read (2002) Times, 17 January, [2001] All ER (D) 355 (Dec) (disputed term not unenforceable and,
therefore, deletion of it not appropriate); and Hepworht Group Ltd v Stockley [2006] EWHC 3626 (Ch), [2007] 2 All ER
(Comm) 82.

5 Cammell v Sewell (1858) 3 H & N 617.

6 Birch v Birch [1902] P 130, CA; Coaks v Boswell (1886) 11 App Cas 232, HL; Boswell v Coaks (No 2) (1894) 86 LT
365n, HL; Thorne v Smith [1947] KB 307, [1947] 1 All ER 39, CA.

Where a party is a corporation, it is possible for evidence perjured by a natural person to be treated as that of the
company, even where it is neither procured or knowingly adopted by the company, nor given by someone who was part
of the company's directing mind and will or a person to whom the conduct of the litigation had been delegated. The test
to be adopted is whether the natural person in question has the status and authority which in law make his acts in the
matter under consideration the acts of the company, so that he is to be treated as the company itself: Odyssey Re
(London) Ltd (formerly Sphere Drake Insurance plc) v OIC Run-Off Ltd (formerly Orion Insurance Co plc) [2001] Lloyd's
Rep IR 1, CA.

7 Flower v Lloyd (1877) 6 ChD 297, CA (citing Lord Redesdale on Pleadings (5th Edn) 112, 113); Cole v Langford
[1898] 2 QB 36; Baker v Wadsworth (1898) 67 LJQB 301; Wyatt v Palmer [1899] 2 QB 106, CA; Charles Bright & Co
Ltd v Sellar [1904] 1 KB 6, CA; Gordon-Smith v Peizer (1921) 65 Sol Jo 607.
 1213. Setting aside or varying a judgment or order.

The validity of a judgment debt on which an adjudication in bankruptcy has been founded may only be contested by the
bankrupt in the bankruptcy court. So long as the adjudication stands, any right of action to set aside the judgment is a
chose (or thing) in action vested in the trustee: Boaler v Power [1910] 2 KB 229, CA.

8 Kuwait Airways Corpn v Iraqi Airways Co (No 2) [2001] 1 WLR 429, HL; and see Jonesco v Beard [1930] AC 298,
HL; Stern v Friedmann [1953] 2 All ER 565, [1953] 1 WLR 969.

See also Cinpres Gas Injection Ltd v Melea Ltd [2008] EWCA Civ 9, [2008] All ER (D) 165 (Jan).

9 Boswell v Coaks (No 2) (1894) 86 LT 365n, HL.

The particulars must be exactly given and the allegation established by the strict proof such a charge requires: Jonesco
v Beard [1930] AC 298, HL.

The court will refuse to set aside a judgment on mere allegation of perjury without new facts: Baker v Wadsworth (1899)
67 LJQB 301; Everett v Ribbands (1946) 175 LT 143, CA.

10 Boswell v Coaks (No 2) (1894) 86 LT 365n, HL.

11 Birch v Birch [1902] P 130, CA.

12 See the observations of James LJ in Flower v Lloyd (1879) 10 ChD 327, CA, and of Cozens-Hardy LJ in Birch v
Birch [1902] P 130, CA.

See also Priestman v Thomas (1884) 9 PD 210, CA (will admitted to probate under a compromise subsequently
discovered to be a forgery); Colclough v Bolger (1816) 4 Dow 54, HL (sale under court order set aside on ground of
fraud and collusion); Brooke v Lord Mostyn (1864) 2 De GJ & Sm 373 (setting aside a compromise).

13 Birch v Birch [1902] P 130, CA; Shedden v Patrick (1854) 1 Macq 535, HL, per Lord Cranworth LJ; cf White v Hall
(1806) 12 Ves 321; Cotter v Earl Barrymore (1733) 4 Bro Parl Cas 203, HL.

On the defendant's move to stay the proceedings as vexatious, the court should receive evidence on either side as to
whether or not there has been a discovery of new and material evidence since the judgment: Boswell v Coaks (No 2)
(1894) 86 LT 365n, HL.

It has been held that the fact that there exists a more summary way of setting aside a judgment by default does not
prevent recourse being had to such fresh proceedings: see Wyatt v Palmer [1899] 2 QB 106, CA. If proceedings are
begun, they ought not to be stayed on terms although such terms could have been imposed had the summary
procedure been utilised: Kennedy v Dandrick [1943] Ch 291, [1943] 2 All ER 606, distinguishing Wyatt v Palmer [1899]
2 QB 106, CA.

14 Parker v Simpson (1869) 18 WR 204; cf Priestman v Thomas (1884) 9 PD 210, CA.

15 Birch v Birch [1902] P 130, CA.

16 For the power to adduce fresh evidence on appeal under CPR 52.21 see PARA 1502.

17 Ladd v Marshall [1954] 3 All ER 745, [1954] 1 WLR 1489, CA (applied to the setting aside of an order for ancillary
relief in Gohil v Gohil [2014] EWCA Civ 274, [2015] Fam 89, [2014] 2 FCR 455, [2014] All ER (D) 147 (Mar)).

See also Re Barrell Enterprises [1972] 3 All ER 631, [1973] 1 WLR 19, CA.

For earlier cases see Boswell v Coaks (No 2) (1894) 6 R 167, HL, where fraudulent suppression of evidence was
alleged; Falcke v Scottish Imperial Insurance Co (1887) 57 LT 39; The Alfred Nobel [1918] P 293; and cf Re Scott and
Alvarez's Contract, Scott v Alvarez [1895] 1 Ch 596; on appeal [1895] 2 Ch 603, CA; JH Rayner (Mincing Lane) Ltd v
Cafénorte SA Importadora [1999] 1 All ER (Comm) 120, affd on different grounds [1999] 2 All ER (Comm) 577, CA.

Where an application is made to adduce new evidence before a trial judge after judgment but prior to the making of the
order for relief, the principles derived from authority should be applied more flexibly than they might be by the Court of
Appeal: Fisher v Cadman [2005] EWHC 377 (Ch), [2006] 1 BCLC 499, applying Ladd v Marshall [1954] 3 All ER 745,
[1954] 1 WLR 1489, CA.

Where fresh evidence tends to show that the judge at first instance has been deliberately misled, the appeal is allowed
and a retrial ordered where the fraud is either admitted or the evidence of it is incontrovertible; where, however, fresh
evidence amounts to an allegation of fraud involving a party to the proceedings and where the allegation is contested,
the usual course is to require that the issue of fraud be tried out before the established judgment is set aside: Noble v
Owens [2010] EWCA Civ 224, [2010] 3 All ER 830, applying Jonesco v Beard [1930] AC 298, HL.
 1213. Setting aside or varying a judgment or order.

18 Wilding v Sanderson [1897] 2 Ch 534, CA; Hickman v Berens [1895] 2 Ch 638, CA; Kinch v Walcott [1929] AC 482,
PC. See further Sturrock v Littlejohn (1898) 68 LJQB 165.

As to consent judgments and orders see PARA 1211.

It has been held that, unless all the parties agree, a consent order, when entered, can only be set aside by fresh
proceedings (Emeris v Woodward (1889) 43 ChD 185; Ainsworth v Wilding [1896] 1 Ch 673; and see also Marsden v
Marsden [1972] Fam 280, [1972] 2 All ER 1162) and that an application cannot be made to the court of first instance in
the original proceedings to set aside the judgment or order (Harrison v Rumsey (1752) 2 Ves Sen 488; Stannard v
Harrison (1871) 19 WR 811; Ainsworth v Wilding [1896] 1 Ch 673. See also Munster v Cox (1885) 10 App Cas 680;
Australasian Automatic Weighing Machine Co v Walter [1891] WN 170), except, apparently, in the case of an interim
order (Mullins v Howell (1879) 11 ChD 763; B (GC) v B (BA) [1970] 1 All ER 913, sub nom Brister v Brister [1970] 1
WLR 664; and see Chanel Ltd v FW Woolworth & Co Ltd [1981] 1 All ER 745, [1981] 1 WLR 485, CA, distinguished in
Butt v Butt [1987] 3 All ER 657, [1987] 1 WLR 1351, CA). These decisions may, however, no longer be authoritative in
view of the court's wide powers under CPR 3.1(7): see PARA 500. See, however, Kea Investments Ltd v Watson [2020]
EWHC 472 (Ch) (on the evidence, an application seeking to unpick a regime imposed by injunction under which a
defendant was free to spend money yet to be received on legal costs fell within the Chanel Ltd v FW Woolworth & Co
Ltd principle, ie that any party seeking a variation of an existing injunction needed to show a change of circumstances).

19 Windhill Local Board of Health v Vint (1890) 45 ChD 351, CA (compromise of prosecution).

20 Priestman v Thomas (1884) 9 PD 210, CA.

21 Gilbert v Endean (1878) 9 ChD 259, CA; and see MISREPRESENTATION VOL 76 (2019) PARA 734.

22 Cumming v Ince (1847) 11 QB 112 .

23 Wilding v Sanderson [1897] 2 Ch 534, CA; Huddersfield Banking Co Ltd v Henry Lister & Son Ltd [1895] 2 Ch 273,
CA.

A compromise will not be set aside merely upon the ground of mistake of law: Holsworthy UDC v Holsworthy RDC
[1907] 2 Ch 62. As to agreements to compromise litigation or to avoid disputes which are capable of being vitiated by
common mistake of law see further MISTAKE VOL 77 (2021) PARA 23.

For the difference between an application to set aside a judgment on grounds of mistake when made before, as
compared with after, the judgment has been entered see A-G v Tomline (1887) 7 ChD 388.

24 Furnival v Bogle (1827) 4 Russ 142.

25 Shepherd v Robinson [1919] 1 KB 474, CA.

Bad or negligent legal advice can never be a ground for setting aside a consent order: Tibbs v Dick [1999] 2 FCR 322,
CA.
26 Great North-West Central Rly Co v Charlebois [1899] AC 114, PC (ultra vires, but see Holsworthy UDC v
Holsworthy RDC [1907] 2 Ch 62); Smith v King [1892] 2 QB 543, DC (infancy).

27 Plumley v Horrell (1869) 20 LT 473.

28 Watt v Assets Co, Bain v Assets Co [1905] AC 317, HL.

29 Re Elstein's Affairs [1945] 1 All ER 272, CA.

30 See Middleton v Middleton [1999] 2 FCR 681, CA.

31 See Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528, [2002] 2 All ER 353 (Court of Appeal had an implicit
jurisdiction to do what was necessary to achieve its two principal objectives, ie of correcting wrong decisions, and
ensuring public confidence in the administration of justice), applied in Estephane v Health and Care Professions
Council [2017] EWHC 2146 (Admin), [2017] All ER (D) 24 (Sep) (jurisdiction of Taylor v Lawrence is not restricted to
the Court of Appeal); and PARA 1504.

See also eg R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2) [2000] 1 AC 119, [1999] 1
All ER 577, HL (adjudicator with direct personal interest in the issue); and JUDICIAL REVIEW VOL 61A (2018) PARA 38.

End of Document