Typically, County Court and High Court court orders are made at a hearing to which all parties were properly invited to attend, with each party having had an opportunity to make representations on any orders which might be made ('Inter Parties Hearings').
However, the Civil Procedure Rules empower the County Court and High Court (the 'court') to make orders, on occasions other than at Inter Parties Hearings - including without a hearing or having representations on the issue to be adjudicated upon. A court may make an order in such circumstances, in response to an application, or of its own initiative[1].
This article will focus on the latter circumstance - where the court makes an order of its own initiative (but for completeness, readers should note that there are corresponding provisions (to CPR r.3.3(4) - see below) in CPR 23.8, 23.9 and 23.10, where an application has been dealt with without a hearing[2]).
Court can make an order of its own initiative
Except where a rule or some other enactment provides otherwise[3], the court can make an order of its own initiative, and without a hearing/giving an opportunity for representations to be made. CPR r.3.3(4) states:
'The court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations.'
On Court's Own Initiative - Right to Apply to have Order set aside, varied or stayed
Where the Court makes such an order - i.e without all interested parties having had an opportunity to make representations first (which, for convenience, will be called a '3.3(4) Order'[4]), the parties are entitled to apply to the Court under CPR r.3.3(5)(a), for an order that the 3.3(4) Order be set aside, varied or stayed. CPR r.3.3(5)(a) reads:
'Where the court has made an order under paragraph (4)-
(a) a party affected by the order may apply to have it set aside, varied or stayed...'
Confirming the position, in Haley v Siddiqui [2014] EWHC 835 (Ch) ('Haley') Judge Hodge QC, sitting as a judge of the High Court, at paragraph 14:
“Where an order has been made by the court of its own initiative, or without a hearing, the parties are entitled to apply to the court to have that order set aside or varied.'
Notification of Right to Apply
To ensure that parties affected by the 3.3(4) Order are aware of their CPR r.3.3(5)(a) rights, CPR r.3.3(5)(b) requires that the court puts a statement in the 3.3(4) Order, notifying that such a right to apply exists. CPR r.3.3(5)(b) reads:
'...the order must contain a statement of the right to make such an application.'[5]
Application for an Order, that the 3.3(4) Order be set aside, varied or stayed
Where a party affected by the 3.3(4) Order makes an application under CPR r.3.3(5)(a) to have 3.3(4) Order set aside, varied or stayed, the CPR r.3.3(5)(a) application:
(1) is not one for relief from sanctions, governed by CPR r.3.1(7). In Haley, Judge Hodge QC explained, at paragraph 14, that:
'...unlike one to set aside an order made at a hearing which the parties have either attended, or had an opportunity to attend, the restrictions contained within CPR 3.1(7), as laid down by the Court of Appeal in the case of Tibbles –v- SIG plc [2012] EWCA Civ 518, [2012] 1 WLR 2591 have no application. Since the parties have not had an opportunity of making 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 whether it was appropriate to make the order in the first place.'[6]
(2) involves, very likely, a rehearing of the issue and not a review of the decision made:
In Al-Zahra (PVT) Hospital v DDM [2019] EWCA Civ 1103, Haddon-Cave LJ (with whom David Richards LJ and Sir Timothy Lloyd agreed) held in the Court of Appeal, in a CPR r.23.10 case, that the court hearing an application to set the order vary/aside etc., is to conduct a rehearing rather than a review of the impugned order [7]. Logically, this seems very likely to also apply to an application to have 3.3(4) Order set aside, varied or stayed.
(3) should, in good practice, be heard at a hearing, rather than dealt with on paper. In Collier v Williams [2006] EWCA Civ 20; [2006] 1 WLR 1945; the Court of Appeal said it is good practice to require any application under CPR r.3.3(5) to be made at a hearing (i.e. an oral hearing) rather than on paper[8].
(4) should make it clear that the application is being brought under CPR r.3.3(5)(a).
Time limit for Any Application for an Order, that the 3.3(4) Order be set aside, varied or stayed
Applications under CPR r.3.3(5)(a) to vary/set aside etc. a 3.3(4) Order must be made swiftly. CPR r.3.3(6) states:
'An application under paragraph (5)(a) must be made-
(a) within such period as may be specified by the court; or
(b) if the court does not specify a period, not more than 7 days after the date on which the order was served on the party making the application.'
So, where the 3.3(4) Order specifies a deadline for issuing the CPR r.3.3(5)(a) application, this will govern (typically this is usually c.7 days). But where the 3.3(4) Order is silent, then the CPR r.3.3(5)(a) application must be made '...not more than 7 days after the date on which the order was served on the party making the application.'
To calculate when the 7 day deadline is, reference can be made to CPR r.2.8, entitled 'Time'[9]
SIMON HILL © 2023
BARRISTER
33 BEDFORD ROW
NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.
[1] A few things to note here:
(1) CPR r.3.3 empowers the court to exercise its powers, not only of its own initiative, but 'on an application'. CPR r.3.3(1) makes this clear, where it states:
'Except where a rule or some other enactment provides otherwise, the court may exercise its powers on an application or of its own initiative.'
(2) 'on an application' and 'of its own initiative' are not the legal equivolent of oil and water (i.e. unmixing). Practice Direction 23A para 11.2 is important here because of its effect where CPR r.23.8(c) applies. CPR r.23.8(c) provides:
'The court may deal with an application without a hearing if -
…
(c) the court does not consider that a hearing would be appropriate.'
And Practice Direction 23A paragraph 11.2 provides:
'Where rule 23.8(c) applies the court will treat the application as if it were proposing to make an order on its own initiative.'
(see R. (Kuznetsov) v Camden LBC [2019] EWHC 3910 (Admin); [2020] Costs L.R. 1113, a decision of Mostyn J on 21.11.19 in the High Court, paragraphs 14-15).
So where the court has an application before it, and the court does not consider that a hearing would be appropriate, the Practice Direction requires that the court treat the order made on paper, on the application, as one of the court's own initiative.
This takes the court to CPR r. 3.3(4) which provides:
'The court may make an order of its own initiative without hearing the parties or giving them an opportunity to make representations.'
(3) Where the court proposes to make an order of its own initiative, it can pause before making the order, to give the parties an opportunity to make submissions on the issue. CPR r.3.3(2) and r.3.3(3) are relevant here:
'(2) Where the court proposes to make an order of its own initiative-
(a) it may give any person likely to be affected by the order an opportunity to make representations; and
(b) where it does so it must specify the time by and the manner in which the representations must be made.
(3) Where the court proposes-
(a) to make an order of its own initiative; and
(b) to hold a hearing ot decide whether to make the order,
it must give each party likely to be affected by the order at least 3 days' notice of the hearing.'
(4) perhaps an obvious point, but where a party makes an application, and requests that it be dealt with on paper, and the court does so deal with the application on paper, the court is acting on the application and not of its own initiative. In Collier v Williams [2006] EWCA Civ 20; [2006] 1 WLR 1945 ('Collier'), the Court of Appeal said, at paragraph 28:
'CPR r 3.3 recognises that the court can exercise its powers on an “application” or “of its own initiative”. CPR r 3.3(5) only applies where the court has made an order of its own initiative. Where a court is considering an application without notice requesting that it be dealt with on paper and decides that the application is suitable for consideration without a hearing, two things seem to us to be obvious. First the court is acting on an application and not of its own initiative, and secondly the only decision which could conceivably be said to be of its own initiative is the decision not to have a hearing.'
Just as side note, in Collier, a warning was given about acceding to requests to deal with applications on paper, at paragraph 38:
'On receipt of a without notice application with a request for the matter to be disposed of on paper, the court should consider whether it is appropriate to dispose of the matter without a hearing. In our view, there is a danger in dealing with important applications on paper. An application for an extension of time for service of the claim form is potentially of critical importance, especially where the application is made shortly before the end of the four months period for service and where the cause of action has become time-barred since the date on which the claim form was issued. If the application is allowed and an extension of time is given, the defendant can always apply under CPR r 23.10 for the order to be set aside, in which case the applicant may be worse off than if it had been refused in the first place. It is highly desirable that on the without notice application, full consideration (with proper testing of the argument) is given to the issue of whether the relief sought should be granted. Equally, if an application is made late in the day and refused on paper when proper argument would have made it proper to grant, a great deal of heartache can be saved. We think that applications of this kind, where time limits are running out, should normally be dealt with by an urgent hearing. We accept, however, that owing to time constraints, pressure of business and the like, it will sometimes not be possible to deal with such an application other than on paper. Even in such cases, however, consideration should be given to dealing with the application by telephone.'
[2] Taking those CPR rules in turn:
(1) CPR r.23.8 is entitled 'Applications which may be dealt with without a hearing' and reads:
'The court may deal with an application without a hearing if-
(a) the parties agree as to the terms of the order sought;
(b) the parties agree that the court should dispose of the application without a hearing, or
(c) the court does not consider that a hearing would be appropriate.'
(2) CPR r.23.9 is entitled 'Service of application where application made without notice' and reads:
'(1) This rule applies where the court has disposed of an application 23.9 which it permitted to be made without service of a copy of the application notice.
(2) Where the court makes an order, whether granting or dismissing the application, a copy of the application notice and any evidence in support must, unless the court orders otherwise, be served with the order on any party or other person-
(a) against whom the order was made; and
(b) against whom the order was sought.
(3) The order must contain a statement of the right to make an application to set aside...or vary the order under rule 23.10.
(2) CPR r.23.10 is entitled 'Application to set aside or vary order made without notice' and reads:
'(1) A person who was not served with a copy of the application 23.10 notice before an order was made under rule 23.9, may apply to have the order set aside...or varied.
(2) An application under this rule must be made within 7 days after the date on which the order was served on the person making the application.'
For completeness, PD23A, paragraph 11.1 relates to CPR r.23.8(b). PD23A, paragraph 11.1 states:
'Where rule 23.8(b) applies the parties should so inform the court in writing and each should confirm that all evidence and other material on which he relies has been disclosed to the other parties to the application.'
[3] Civil Procedure Rules ('CPR') r.3.3 is entitled 'Court’s power to make order of its own initiative' and CPR r.3.3(1) reads:
'Except where a rule or some other enactment provides otherwise, the court may exercise its powers on an application or of its own initiative.'
There are 2 aspects to this:
(1) 'Except where a rule or some other enactment provides otherwise...'
(2) 'the court may exercise its powers on an application or of its own initiative'
Looking at (2):
The Court is empowered to make order, even when there is no application for an order, before the Court.
Where the Court is proposing to make an order of its own initiative, the Court can choose to:
(a) delay making the proposed order, and invite the parties who may be affected by it, to make representations upon the proposal, first; or
(b) make the proposed order, with the parties then, upon receipt, having the option (if so advised), to make a prompt application to the Court, for an order, setting aside the order made without a hearing on the Court's initiative.
As to (a) above, CPR r.3.3(2) and (3) read:
'(2) Where the court proposes to make an order of its own initiative-
(a) it may give any person likely to be affected by the order an opportunity to make representations; and
(b) where it does so it must specify the time by and the manner in which the representations must be made.
(3) Where the court proposes-
(a) to make an order of its own initiative; and
(b) to hold a hearing to decide whether to make the order,
it must give each party likely to be affected by the order at least 3 days’ notice of the hearing.'
As to (b), see the main body of this article - Possession Proceedings - have Practice Direction 55A, paragraphs 8.1 to 8.4.
Looking at (1) (non-exhaustively) - where CPR r.81 contempt proceedings (basically, non-CPR r.71 contempts - see CPR r.81.6(3) - (Westrop v Harrath [2023] EWCA Civ 1566 (Coulson LJ, Moylan LJ and Lewison LJ), paragaph 50 onwards)
[4] '3.3(4) Order' a reference to CPR r.3.3(4), which reads:
'The court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations.'
This (i.e '3.3(4) Order') is a label that has been coined for this convenience in this article. For the avoidance of doubt, it is not used as a label in any statute or the CPR/Practice Directions, nor in any reported authorities.
[5] Three points here:
(1) a typical CPR r.3.3(5)(b) notification might read as follows:
'This order was made without a hearing pursuant to Civil Procedure Rules Part 3.3(4). You have the right to make an application to the Court to vary or set asie this order, but you must do it within 7 days of you getting this order.'
(2) a typical notification during an appeal process (in a chancery appeal), akin to under CPR CPR r.3.3(5)(b), would read as follows:
''This Order has been made by the court without a hearing pursuant to CPR PD 52B paragraph 7.1. Any party affected by the order may apply to have it set aside or varied within 7 days of the date of service upon that person. The application may be made by CE-filing a letter of request under the appeal reference number above, or alternatively by email to ChanceryJudgesListing@justice.gov.uk or by post to the Chancery Appeals Office, Rolls Building, 7 Rolls Buildings, Fetter Lane, London EC4A 1NL quoting the above appeals reference number. A copy of the application must be served on all other parties at the same time.'
(3) A failure by the court to include a CPR r.3.3(5)(b) notification in its 3.3(4) Order - does that affect the 3.3(4) Order's validity? The law has become unclear as a result of a recent authority - Westrop v Harrath [2023] EWCA Civ 1566 (Coulson LJ, Moylan LJ and Lewison LJ) ('Westrop'):
(a) In R. (Kuznetsov) v Camden LBC [2019] EWHC 3910 (Admin); [2020] Costs L.R. 1113 ('Kuznetsov'), Mostyn J recorded (paragraph 18) that the key impugned 16.5.19 costs order (paragraph 1) in the case before him, did not have a CPR r.3.3(5)(b) notification, before stating, at paragraph 18:
'...but that does not, in my judgment, affect its validity.'
(b) In Westrop, a suspended committal order was made without a hearing under CPR r.71, against a judgment debtor. The judgment debtor appealed on many points. Coulson LJ gave the only judgment (Moylan LJ and Lewison LJ agreed) and he decided that Ground 3 was made out and that '[t]he judge had no power to make the suspended committal order' (paragraph 37). After going into a little more detail about why Ground 3 succeeded, he said, in paragraph 37:
'That was the principal reason why, at the end of the appeal hearing, we announced that the suspended committal order ... must be set aside. However, for completeness, I go on to deal with the other points raised by [counsel for the judgment debtor] in respect of r.71.8.'
With that noted, we can turn to paragraphs 46 to 49, where Coulson LJ considered Ground 7 - the ground relevant to this article. Coulson LJ said:
'Ground 7 complains that, because the order was made without a hearing, it should have contained a statement of [the judgment debtor's] right to make an application to have the order set aside, varied or stayed in accordance with r.3.3(5). That rule provides that “where the court has made an order of its own initiative…without hearing the parties or giving them an opportunity to make representations…the order must contain a statement of the right” to apply to set aside, vary or stay the order. No such statement was included in the committal order and, so it is therefore said, the order was unjust because of a serious procedural irregularity.
Can it be said that the suspended committal order was made on the court’s initiative? I think it can. I accept that authorities such as Shawston Engineering Ltd v DGP International and Anr [2003] EWCA Civ 1956, where the judge transferred a case from Liverpool to London without any reference to the parties, may be rather more obvious examples of a court acting on its own initiative. However, I think that a suspended committal order is made on the court’s initiative. 71PD.6 requires a judge or court officer to certify in writing the judgment debtor’s non-compliance with the order for attendance. Thereafter, r.71.8(1) states that “the court will refer the matter to a High Court Judge”. That is a process undertaken at the court’s own initiative.
The need for a notice setting out the right to seek to set aside, vary or stay the order is not a point addressed directly in [Broomleigh Housing Association Ltd v Emeka Okonkwo [2010] EWCA Civ 1113; [2011] H.L.R. 5]. I had wondered whether the fact that the order under r.71.8 was suspended until the return day was sufficient protection, but I am persuaded that it was not. I consider that, if a committal order was wrongly made, then the alleged contemnor is entitled as of right to challenge it, and should not have to wait for the return day in order to do so. Furthermore, the universality and mandatory nature of r.3.3(5) – there are no qualifications to the requirement that the order must contain a statement setting out the right to set aside, vary, or stay – lead inexorably to the conclusion that the suspended committal order should have contained the r.3.3(5) notice.
The suspended committal order in this case did not contain a r.3.3(5) notice. I note that it contained a notice of [the judgment debtor's] right of appeal under Part 52, but that is a very different thing. Accordingly, I consider that Ground 7 has been made out.'
Nowhere does Coulson LJ refer to Kuznetsov, nor indicate that the Court of Appeal was referred to it, which is unfortunate. But: (a) the Court of Appeal would not be bound by Kuznetsov; and (b) Mostyn J did not set out reasons for how he reached the conclusion he did. Mostyn J simply asserted his conclusion on the point.
[6] This quote is part of a wider passage in Haley v Siddiqui [2014] EWHC 835 (Ch)('Haley'). Judge Hodge QC, sitting as a judge of the High Court, in Haley stated, in paragraph 15:
'In my judgment, on such an application to review an order made without a hearing and/or of the court's own initiative, the restrictions upon applications for relief from sanctions, as set out by the Court of Appeal in the case of Mitchell -v- News Group Newspapers Limited [2013] EWCA Civ 1537 [now reported at [2014] 1 WLR 795], have no application. In my judgment it is wrong to approach an application to set aside an order made without a hearing, or of the court's own initiative, as though the restrictions on an application for relief from sanctions apply. CPR 3.8 makes it clear that where a party has failed to comply with a rule, practice direction or court order, any sanction for failure to comply imposed by the rule, practice direction or court order has effect unless the party in default applies for and obtains relief from the sanction. That has no application to a situation where the court's order, made without a hearing and of its own initiative, is imposing a sanction for the first time. It is only in cases where a party has failed to comply with a sanction that an application under CPR 3.9 is necessary; and it is only in that situation that the restrictions in Mitchell and subsequent cases apply. As was made clear in Mitchell (at paragraph 45), on an application for relief from a sanction, the starting point should be that the sanction has been properly imposed and complies with the overriding objective. In my judgment, no such assumption applies where a sanction has been imposed by an order made without a hearing, or of the court's own initiative, and an application is made to vary it or set it aside.'
On the facts in Haley, an order was made on the court's own initiative without a hearing on 6.12.13 (i.e the '3.3(4) Order' order/impugned order), and the claimant applied on N244, asking:
'the court to make the following orders: (1) The order dated [6.12.13]...be rescinded. (2) The claimant be granted relief from sanctions in respect of the order dated [6.12.13]' (paragraph 4)
The DJ failed to consider (1) and just determined that application in relation to (2). On appeal, this was held to be a fundamentally false basis for determining the application (paragraphs 13 and 16). The appeal was allowed and the 6.12.13 order was set aside.
Because Judge Hodge QC thought the DJ had been lead astray by the claimant's presentation of the application, Judge Hodge QC imposed the expense of obtaining a transcript of the DJ's decision, upon the claimant. At paragraph 20, Judge Hodge QC said:
'In my judgment the circumstances of the present case afford a salutary lesson potentially to other litigants in other litigation in ensuring that applications to the court to set aside orders made without a hearing, or of the court's own initiative, are properly presented as such, and not simply as applications for relief from sanctions. Because of that, and pursuant to the power I have to make an order subject to conditions, I will make it a condition of giving permission to appeal, and allowing the appeal, that a transcript of this judgment will be obtained at the expense of the claimant.'
[7] In Al-Zahra (PVT) Hospital v DDM [2019] EWCA Civ 1103 ('Al-Zahra'), a mother (the respondent on the second appeal) issued: (1) a claim in England against a Dubai Hospital and individual doctors/medics (the appellants on the second appeal) in relation to medical negligence (a 'wrongful birth' claim - paragraph 3); (2) an application to serve the (same) claim form out of the jurisdiction; and (3) an application for an extension of time of 11 months for serving the claim form (over and above the 6 months already allowed by the CPR for service out of the jurisdiction - paragraph 14)(the 'First Extension Application'). On 25.9.15, the First Extension Application was granted by Master Cook. On 4.10.16, a second extension application (the 'Second Extension Application') was made, and on 17.10.16 granted by Master Cook (the Second Extension Application made on that basis that a further extension was necessary, as there had been delays in arranging for service of the documents)(paragraph 18). Note, these were orders made, not on the court's initiative, but 'on an application'.
Between 0.2.17 and 0.4.17, service of the claim form took place on (most of the) defendants. On 20.4.17, the Dubai Hospital and (most of the) individual doctors/medics applied under CPR r.23.10 to the English court, for orders setting aside both extensions of time orders (the 'Set Aside Applications'). On 12.7.17, Master Cook heard the Set Aside Applications and, after refusing the mother an adjournment to obtain more evidence, determined: (1) not to set aside the First Extension Application Order; but (2) did set aside the Second Extension Application order.
On the first appeal [2018] EWHC 346 (QB), brought by the mother (paragraph 29), Foskett J held that Master Cook on 12.7.17 had been wrong to refuse the mother's application for an adjournment to obtain more evidence, and allowed the appeal against Master Cook's 12.7.17 decision. In other words, Foskett J held that both extensions of time had been properly granted (paragraphs 2 and 31) and so Master Cook should not have set aside the Second Extension Order. Foskett J was critical of Master Cook approaching the determining the Set Aside Applications, as one of reviewing the earlier First Extension Application Order and Second Extension Application order, rather than holding a rehearing.
Under the subheading 'Procedural Aspects', Foskett J said, at paragraph 62:
'The nature of a hearing to set aside an extension order and an appeal from a decision made at such a hearing were considered in Hashtroodi at [33]:
"It is common ground that in the events which have occurred here, the appeal to this court is a rehearing, rather than a review of the decision of [the deputy master who considered the application to set aside the extension order of the Master]. This is because … an application under CPR 23.10(1) to set aside an order obtained without notice should involve a rehearing of the issue, and not a review of the decision that it is sought to set aside; but, in the present case, the deputy master conducted the application as if it were a review of the decision of [the Master]."
Note the reference to the case of 'Hashtroodi' is a reference to: Hashtroodi v Hancock [2004] EWCA Civ 652, [2004] 1 WLR 3206.
Foskett J then said, at paragraph 63:
'It follows that, to the extent that it is relevant and material, the hearing before Master Cook on [12.7.17] was a rehearing of the issue whether to grant the extensions of time, not a review of his earlier decisions...' (the same point is made, again, in paragraph 65; see also paragraph 72)
On the second appeal, brought by the Dubai Hospital (and individual doctors/medics (paragraph 32)), in the Court of Appeal, Haddon-Cave LJ (with whom David Richards LJ and Sir Timothy Lloyd agreed) agreed with Foskett J on this point. At paragraphs 67 and 68, Haddon-Cave LJ said:
'In my view, Foskett J was correct to hold that, if and in so far as Master Cook approached the hearing before him as a review rather than a rehearing, Master Cook was in error. Foskett J appropriately cited (at [62]) the following passage from paragraph [33] of Dyson LJ's judgment in Hashtroodi in which Dyson LJ made it clear that an application under CPR 23.10(1) to set aside an order obtained without notice should involve a rehearing not a mere review:
"[33] It is common ground that in the events which have occurred here, the appeal to this court is a rehearing, rather than a review of the decision of [the deputy master who considered the application to set aside the extension order of the Master].
This is because … an application under CPR 23.10(1) to set aside an order obtained without notice should involve a rehearing of the issue, and not a review of the decision that it is sought to set aside; but, in the present case, the deputy master conducted the application as if it were a review of the decision of [the Master]." (emphasis added)
On this basis, Foskett J was correct to conclude that Master Cook had misdirected himself as to the nature of the hearing before him; and it was, therefore, open to Foskett J to remake the relevant decisions determined by Master Cook, including the question of admitting further evidence from the Claimant.'
In the event, the Court of Appeal overturned Foskett J's decision to set aside Master Cook's 12.7.17 decision in respect to the Second Extension Order.
Note there is also the case of R. (Kuznetsov) v Camden LBC [2019] EWHC 3910 (Admin); [2020] Costs L.R. 1113 ('Kuznetsov'), a decision of Mostyn J on 21.11.19 in the High Court. A few things to note:
(1) Al-Zahra is Court of Appeal, whereas Kuznetsov is High Court; but
(2) Kuznetsov (21.11.19) was decided after Al-Zahra (27.6.19); though
(3) Al-Zahra was not cited in Kuznetsov. Indeed, Mostyn J was under the mis-impression that there were no authorities on point. Mostyn J in Kuznetsov:
'It is surprising that there is absolutely no authority on the point, notwithstanding that this rule has been in existence since 26 April 1999. Twenty years have passed and there has been no decision as to what legal standard the court should apply in considering an application to set aside an order made without a hearing and on the papers.'
Mostyn J judgment in Kuznetsov is, in the author's view, therefore per incuriam. Thinking he had to formulate a test, Mostyn J judgment in Kuznetsov said, after drawing some inspiration from Samson v Samson [1966] P52, at paragraph 24:
'In my judgment, I would formulate the test as follows, that the court should give due weight to the decision of the judge who dealt with the matter without a hearing and should be able to identify a good reason for disagreeing with his or her decision. That is the standard I shall apply in judging this application.'
It is respectfully suggested that Al-Zahra should followed ahead of Kuznetsov (following the White Book 2022 commentary, para 3.3.2, where it uses the word 'but')
[8] In Collier v Williams [2006] EWCA Civ 20; [2006] 1 WLR 1945 ('Collier'), the Court of Appeal said, at paragraph 37:
'We suggest that it is good practice to require any application under CPR r 3.3(5) to be made at a hearing rather than on paper.'
This is to avoid an 'potentially endless loop' of renewed applications.
As to the risk of repeated CPR r.3.3(5) applications being made, in Collier the Court of Appeal said, at paragraph 37:
'If a judge dismisses an application under CPR r 3.3(5), whether on paper or at a hearing, any further application under CPR r 3.3(5) should usually be struck out as an abuse of process, unless it is based on substantially different material from the earlier application (in which case different considerations will arise).'
[9] CPR r.2.8 is entitled 'Time' and reads:
'(1) This rule shows how to calculate any period of time for doing any act which is specified-
(a) by these Rules;
(b) by a practice direction; or
(c) by a judgment or order of the court.
(2) A period of time expressed as a number of days shall be computed as clear days.
(3) In this rule “clear days” means that in computing the number of days-
(a) the day on which the period begins; and
(b) if the end of the period is defined by reference to an event, the day on which that event occurs, are not included.'
CPR r.2.8 then gives 3 worked examples:
'Examples-
(i) Notice of an application must be served at least 3 days before the hearing.
An application is to be heard on Friday 20 October.
The last date for service is Monday 16 October.
(ii) The court is to fix a date for a hearing.
The hearing must be at least 28 days after the date of notice.
If the court gives notice of the date of the hearing on 1 October, the earliest date for the hearing is 30 October.
(iii) Particulars of claim must be served within 14 days of service of the claim form.
The claim form is served on 2 October.
The last day for service of the particulars of claim is 16 October.'
CPR r.2.8 continues, with r.2.8(4):
'(4) Where the specified period-
(a) is 5 days or less; and
(b) includes-
(i) a Saturday or Sunday; or
(ii) a Bank Holiday, Christmas Day or Good Friday, that day does not count.
CPR r.2.8(4) is accompanied by a worked example:
Example -
Notice of an application must be served at least 3 days before the hearing. An application is to be heard on Monday 20 October.
The last date for service is Tuesday 14 October.
Lastly, CPR r.2.8(5) provides:
'(5) Subject to the provisions of Practice Direction 5C, when the period specified-
(a) by these Rules or a practice direction; or
(b) by any judgment or court order,
for doing any act at the court office ends on a day on which the office is closed, that act shall be in time if done on the next day on which the court office is open.'
Note that under CPR r.2.11, entitled 'Time limits may be varied by parties', the parties may agree to vary by the written agreement of the parties. CPR r.2.11 reads:
'Unless these Rules or a practice direction provide otherwise or the court orders otherwise, the time specified by a rule or by the court for a person to do any act may be varied by the written agreement of the parties.
(Rules 3.8 (sanctions have effect unless defaulting party obtains relief), 28.4 (variation of case management timetable—fast track) and 29.5 (variation of case management timetable—multi-track), provide for time limits that cannot be varied by agreement between the parties).'
Of course, the court also has the general power to shorten or extend the time for complying with any rule or court order (under CPR r.3.1(2)(a))