A party that failed to comply with an “unless” order is not entitled to any relief from sanctions unless it can demonstrate a “material change of circumstances”.


In the case of Thevarajah (Respondent) v Riordan and others (Appellants), the appellants had been ordered by the court to disclose certain identified assets which they had previously failed to disclose as part of a freezing order made against them. The order was an “unless order”, meaning that if they failed to comply, they would be debarred from defending the claim. Although the appellants did disclose some further documents, they failed to comply fully with the unless order, so they were prevented from defending the case against them. Their application for relief from sanctions was dismissed at first instance.

Having instructed a new firm of solicitors and provided a further affidavit, which they claimed provided full disclosure, the appellants applied a second time for relief from sanctions. This second application was made on the basis that they had tried hard to comply with the terms of the freezing and unless orders, any failure to comply was relatively slight and that to maintain the debarring order would, in all the circumstances, be disproportionate. Relief was granted at first instance, but the Court of Appeal restored the debarring order. This decision was appealed to the Supreme Court.

The Supreme Court’s decision

Lord Neuberger (with whom all six of the other Lords agreed) confirmed that it was, as a matter of ordinary principle, not normally open to a party to ask for relief from sanctions which requires a court order to be varied unless there has been a material change in circumstances since the order was made. He concluded that the mere fact of a party’s subsequent compliance with an unless order cannot amount to a material change of circumstances entitling it to relief from sanctions. In this case, there appeared to be no new facts and no explanation to justify a conclusion that there had been a material change of circumstances. In the absence of any such explanation, the Supreme Court concluded it was appropriate to uphold the decision of the Court of Appeal to debar the appellants from defending the claims.

In deciding whether to grant any relief from sanction, the court is required to consider all the circumstances of the case so as to deal with the application justly, including the need to enforce compliance with court orders. The Supreme Court cited the case of Mitchell v News Group Newspapers Ltd, concerning the basis upon which a court should approach an application for relief from sanctions. That case confirmed that when deciding whether to exercise its discretion to vary or revoke a court order, the court should have regard to considerations of finality, the undesirability of allowing litigants to have two bites at the cherry, and the need to avoid undermining the concept of appeal. The Supreme Court agreed that the court’s discretion should normally only be exercised where either (i) there had been a material change of circumstances since the order was made; (ii) the facts on which the original decision was made had been misstated; or (iii) there had been a manifest mistake on the part of the judge in formulating the order.


This latest case confirms that the courts are adopting a strict approach in order to ensure compliance with court orders. Any application for relief will need to be made promptly and be accompanied by clear and detailed evidence explaining why the court should exercise its discretion in all the circumstances of the case.

Further reading

Supreme Court Judgment: Thevarajah (Respondent) v Riordan and others (Appellants) [2015] UKSC 7