It is very unusual for the Supreme Court to hear appeals relating to case management, so the decision in Riordan v Thevarajah, handed down on 16 December 2015, is an important one for all involved in disputes. Late compliance with an unless order (in this case after the claim was struck out following an initial failed application for relief from sanctions) was not a "material change in circumstances" which allowed the court to revoke the earlier order.


A freezing order obtained by the claimant required the defendants to provide documentation and information by a certain date. They failed to do so in time, and the claimants gave them more time. When they still failed to comply fully the claimants applied for an "unless order" ordering the defendants to comply, failing which the defence would be struck out. Again they failed to comply fully and were debarred from defending. They had applied for relief from sanctions (under CPR 3.9) but the judge declined to grant relief. They later renewed the application for relief, and only at that point complied fully with the original disclosure order. The Deputy High Court judge granted the second application for relief and reinstated the defence. On the claimant's appeal the Court of Appeal held that, given that the initial application for relief had failed, the judge should not have agreed to a second application unless there had been a "material change in circumstances". There had been no such change.

The Supreme Court ruling

The Supreme Court agreed unanimously with the Court of Appeal, but gave its own analysis of the reasons for doing so.

The court's power to vary or revoke its orders

In the second relief application the court was being asked to "vary or revoke" the court's order refusing relief, the Supreme Court said, and so CPR 3.1(7) applied.  Under CPR 3.1(7) the court could not vary or revoke an order unless there had been a "material change in circumstances". And even if CPR 3.1 (7) didn't apply, a material change in circumstances would also have been required for a further application under CPR 3.9 for relief from sanctions.

Was late compliance "a material change in circumstances"?

The Supreme Court said it was not. To regard compliance after the period set out in an unless order as "a material change" would mean that "the court would have effectively been saying that it was never too late for a party to comply with the unless order and obtain relief".

However, the Supreme Court didn't close off completely the possibility of second applications for relief. Late compliance might in some circumstances give rise to a successful second application: an order for payment of money, where payment is made late, might be capable of constituting a material change of circumstances, provided it was accompanied "by other facts", such as money having become available which was not available previously.

Thevarajah v Riordan, Supreme Court, 16 December 2015