The first instance decision in this case was reported in Weekly Update 38/13. It concerns an application for relief from sanctions. The claimant obtained a freezing order against the defendants which contained certain disclosure obligations. The defendants failed to comply with these disclosure obligations and an unless order was then obtained by the claimant. When the defendants failed to comply with the unless order they were debarred from defending the claim and the defence was struck out. The defendants sought relief from sanctions pursuant to CPR r3.9. That was refused by Hildyard J and the defendants then made a second relief application to a deputy judge. Relief from sanctions was then granted. However, the appeal to the Court of Appeal was allowed, on the basis that CPR r3.1(7) had applied instead in relation to the second application (this rule, part of the court's general case management powers, gives the court the power to vary or revoke an order).  Accordingly, relief should have been granted only if there had been a "material change of circumstances". The deputy judge had held that, in any event, there had  been a material change because the defendants had now substantially complied with their disclosure obligations.

The Supreme Court has now held that the Court of Appeal was correct to find that CPR r3.1(7) applied to the second relief application. Even if it did not, an application for relief which effectively requires an order be varied or rescinded will require a material change of circumstances. Furthermore a material change of circumstances cannot be the mere fact that the defendant has now complied with an earlier unless order.