(vi) Edwards v Golding is an example of the operation of the rule in a rather different circumstance, namely that of a manifest mistake on the part of the judge in the formulation of his order …

(vii) The cases considered above suggest that the successful invocation of the rule is rare. Exceptional is a dangerous and misleading word: however, such is the interest of justice in the finality of a court's orders that it ought normally to take something out of the ordinary to lead to variation or revocation of an order, especially in the absence of a change of circumstances in an interlocutory situation."

26. Rix LJ went on to consider the possibility that there might be other circumstances in which the rule could be invoked, for example that there might be room within it for a prompt recourse to the court to deal with a matter which ought to have been dealt within an order but which in genuine error was overlooked by the parties and the court. In that context he underlined the need for promptness, stating at para 42:

"The court would be unlikely to be prepared to assist an applicant once much time had gone by. With the passing of time is likely to come prejudice for a respondent who is entitled to go forward in reliance on the order that the court has made. Promptness in application is inherent in many of the rules of court: for instance in applying for an appeal, or in seeking relief against sanctions (see CPR 3.9(1)(b)) …" "

1. Thevarajah is a relief from sanction case and to some extent is concerned with the sequential relationship between CPR Part 3.1(7) and CPR Part 3.9 (relief from sanction). Its focus was whether another Judgment of the Court of Appeal, Woodhouse v Consignia plc [2002] EWCA Civ 275, [2002] 1 WLR 2558, was authority for the proposition that a second application for relief from sanction was permissible without an application made under CPR** Part 3.1(7) to set aside the previous refusal of relief. Ultimately the fundamental issue was whether the Judge at first instance was correct in identifying the fact that the giving of disclosure since relief from sanction had been refused amounted to a material change in circumstances. This is dealt with in the Judgment of Richards LJ as follows at paragraph 30 to 32:

"30. The reasoning in that passage⁶

does not sit altogether comfortably with the policy of the April 2013 rule changes giving effect to the Jackson reforms, as underlined by the Mitchell judgment in relation to CPR 3.9 in particular. But in any event the court in Woodhouse was not addressing a situation where, as here, a "second bite at the cherry" under CPR 3.9 involves setting aside a previous order refusing relief from sanction. That presumably explains the absence of any reference to CPR 3.1(7) or to the criteria relevant to its application. We are satisfied that the judgment in Woodhouse is not to be read as displacing the normal operation of CPR 3.1(7) in a case involving CPR 3.9; and in so far as the deputy judge proceeded on the basis that the judgment in Woodhouse permitted the course adopted by him in the present case, he was wrong to do so. The respondents' "second bite" application was in substance an application under CPR 3.1(7) for the setting aside of the provisions of Hildyard J's order refusing relief under CPR 3.9, and as such it had first to satisfy the criteria in Tibbles.

31. The respondents' application manifestly failed to satisfy those criteria. The only argument advanced in relation to them was and is that there had been a material change of circumstances since Hildyard J's order was made, in that the respondents had now, as of 1 October 2013, given the full disclosure that the unless order required to be given by 1 July 2013. The deputy judge held at para 55 of his judgment (quoted at para 17 above) that "this compliance itself amounts to a material change of circumstances" since the date of Hildyard J's order. Whether the respondents had in fact complied with the disclosure requirements in the unless order was a matter of dispute before us, but there is no need to examine that issue. Even if the required disclosure had been made at last, some three months after the date for compliance under the unless order itself and almost two months after the date of Hildyard J's refusal of relief from sanction for non-compliance, it could not in our view amount to a material change of circumstances for the purposes of an application under CPR 3.1(7). It could not alter the fact of non-compliance with the unless order or amount to a good reason for that non-compliance, nor would it undermine the reasoning that led Hildyard J to refuse relief from sanction. There was nothing here by way of material change of circumstances, and there was no other basis for an application under CPR 3.1(7) to vary or revoke Hildyard J's order.

32. In our judgment, therefore, the deputy judge ought to have rejected the respondents' second application under CPR 3.9 on the threshold ground that no proper basis had been put forward for revisiting Hildyard J's order refusing the first application for the same relief."

1. It seems to me from the above that in Thevarajah there is no hint that the Court of Appeal was considering the issue as to whether or not there had been a material change of circumstances in terms of the exercise of judicial discretion. This is a matter to which I will need to return later but whatever the significance of paragraphs 31 and 32 of Thevarajah the other citations from it (paragraphs 24 to 26) seem to me to disclose sufficiently the current position in the civil jurisdiction and so I turn now to the jurisdiction of the Employment Tribunal.

1. Until very recently the commencement and conduct of proceedings in the Employment Tribunal did not involve the payment of fees but the position is now more or less equivalent to that in the civil courts; costs, however, are still only recoverable in limited circumstances. Under Rule 4(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 the power of the Employment Tribunal to give directions had been "to give such directions … as appear to the tribunal to be appropriate". By Rule 10 of these Rules of Procedure there was introduced for the first time into the context of the Employment Tribunal the concept of an overriding objective; this was "to deal with cases justly", although that included "saving expense". Review was dealt with in Rule 13; one of the grounds for review was that "the interests of justice require such a review" (see Rule 13(e)).

1. The Rules were changed in 2004 and Rule 3 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, which dealt with the overriding objective, contained more or less the same rubric as the previous Rules. Rule 10(1) allowed the Employment Judge (still then called the "chairman") either to make orders prescribed in a list "or such other orders as he thinks fit" (by then the term "order" had been substituted for "direction"). Another difference between the Rules under the 2001 Regulations and the Rules under the 2004 Regulations was that the latter now contained in Rule 10(2)(n) an express provision allowing for the variation or revocation of an order. The review provisions were contained in Rule 34 and in Rule 34(3)(e) the interests of justice ground for review was repeated.

1. In the latest iteration of the Rules, the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, the overriding objective is to be found in Rule 2. The rubric is not much altered; "fairly" has been promoted from being one of the factors to be included in dealing with the case in accordance with the overriding objective to become a component of the objective itself - "to deal with cases fairly and justly" - and new concepts, which may be somewhat more than simply refinements of the previous text, have been introduced - "avoiding unnecessary formality and seeking flexibility in the proceedings" and "avoiding delay, so far as compatible with proper consideration of the issues". Now Rule 29 of the 2013 Rules requires an Employment Judge to consider whether a variation is "necessary in the interests of justice":

"29. Case management orders

The Tribunal may at any stage of the proceedings, on its own initiative or on application, make a case management order. The particular powers identified in the following rules do not restrict that general power. A case management order may vary, suspend or set aside an earlier case management order where that is necessary in the interests of justice, and in particular where a party affected by the earlier order did not have a reasonable opportunity to make representations before it was made." (Emphasis added)

This is now aligned with the Rule relating to "reconsideration" (terminology which has replaced "review") where the only basis for such reconsideration is "where it is necessary in the interests of justice" (see Rule 70).

1. These being the Rules of Procedure applicable over roughly the same period as the CPR has been in force, I need to consider the authorities decided in relation to them during that period. Referred to in a number of later cases is the Judgment of a division of this Tribunal presided over by Keene J in Maurice v Betterway UK Ltd [2001] ICR 14, which was a case about successive pre-hearing reviews; although there are earlier decisions it seems to me a good starting point. Keene J said this at paragraph 22 of the Judgment:

"… We are satisfied that the power to revisit a rule 7 issue is not a power to be used in order to have a second or third or further bite at the same cherry, when there has been no material change in facts or in the law, nor is it a procedure to be used to enable a party to go, as it were, chairman shopping, moving from one chairman to another until it can find a chairman who will come up with a decision in its favour."

1. In Goldman Sachs Services Ltd v Montali [2002] ICR 1251, a case with a striking factual similarity to the instant appeal, a division of this Tribunal, presided over by His Honour Judge Clark, concluded that variation of a case management direction, whilst undoubtedly a decision involving the exercise of judicial discretion, should be subjected to consideration as to whether there could be said to have been "a material change in circumstances" since the order was made. In the course of the Judgment reference was made firstly to what were described as "the ordinary civil rules", by which I would understand HHJ Clark to have meant firstly the position as it had been under the Rules of the Supreme Court (see paragraph 22) and secondly the CPR and to what was then, and still is, paragraph 6.4 of 29PD.6 (i.e. the Practice Direction to CPR Part 29, which deals with multi-track cases and makes explicit reference in that context to "a change in circumstances since the order was made" as the basis for permitting the court "to set aside or vary a direction it has given") (see paragraphs 23 and 24). It is perhaps worth pausing at paragraph 24 and the citation from paragraph 22 of the Judgment of Laws LJ in the Court of Appeal case of Jameson v Lowis [2001] EWCA Civ 1264 where in the context of the procedures relating to appeals against interlocutory orders he referred to such procedures as not being "mere technicalities" and said:

"They exist to achieve finality and certainty within the processes of civil litigation. If they are ignored by litigants who prefer to air their procedural points all over again at a later case management conference and that kind of action was sanctioned by this court, the aims of the Civil Procedure Rules would be significantly undermined. We would have uncertainty and repetition, not clarity and finality. Of course, if there were a true change of circumstances then in my judgment the flexibility which the Civil Procedure Rules commend would plainly allow a change of view as to the procedural orders which should be made."

1. After also taking into account the overriding objective at paragraph 25 HHJ Clark arrived at this conclusion at paragraph 26:

"26. That, it seems to us, is the clearest possible indication that when exercising any power under the Rules, as here, the employment tribunal will follow the same principles as those spelt out in the Civil Procedure Rules. In particular, in the present case, it will not reverse any earlier interlocutory order, which has dictated the parties' preparation of their cases, in the absence of a material change in circumstances. …"

and then said this at paragraph 29 when dealing with the disposal of the appeal:

"29. Whether or not a preliminary hearing was desirable in this case is not a matter for us in this appeal. If litigants, and more particularly the employment tribunal itself, revisit procedural points already decided in the absence of the change of circumstances there will be uncertainty and repetition rather than clarity and finality within the processes of the tribunal litigation, to paraphrase Laws LJ in Jameson v Lovis."

1. Onwuka v Spherion Technology UK Ltd [2005] ICR 567 is a Judgment of this Tribunal made in respect of the Rules contained in the 2004 Regulations. Unlike Goldman Sachs v Montali there is hardly any resemblance between Onwuka and the instant appeal. The case involves an application for an amendment of the claim which was refused and much of the appeal was about whether the discretion to allow or refuse that amendment had been properly exercised. A subsequent application to review that refusal was itself refused and some part of the appeal related to that and to whether the matter could be reconsidered. The real significance of the case for present purposes is that a division of this Tribunal presided over by Rimer J decided that under the Rules of Procedure contained in the 2004 Regulations although there was now a power to vary or revoke previous orders, "in the absence of any material change in circumstances" this Tribunal would not expect such a power to be utilised (see paragraph 35 of the Judgment).

1. This concept of a "material change in circumstances" was considered with approval as being "very important guidance, albeit that is not a limitation found in the Rules themselves" by another division of this Tribunal presided over by Elias J in Hart v English Heritage (Historic Buildings and the Monuments Commission for England) [2006] ICR 655 (see paragraphs 31 to 33 of the Judgment); Hart was an appeal about a series of refusals to review a previous decision.

1. In Governing Body of St Albans Girls' School v Neary [2009] EWCA Civ 1190, [2010] ICR 473 the Court of Appeal had to consider the argument that Employment Tribunals were obliged to consider relief from sanction in terms of the what can be called the "check list" provided by a set of considerations set out the then current iteration of CPR Part 3.9(1)⁷ and whether it would be an error of law for them not to consider each and every one of the criteria as then set out in CPR Part 3.9. This proposition was rejected by the Court of Appeal in a comprehensive Judgment given by Smith LJ with the agreement (subject to a minor qualification of no importance for the instant appeal) of Sedley LJ in a brief Judgment and of Ward LJ, even more briefly expressed. Her reasoning is at paragraph 47 of her Judgment:

"I would accept Mr Green's submission that it should be inferred that Parliament deliberately did not incorporate CPR r 3.9 (1) into employment tribunal practice when it chose to incorporate the overriding objective. There is, to my mind, an obvious reason why Parliament did not do so. It has always been the intention of Parliament that employment tribunal proceedings should be as short, simple and informal as possible. We all know that that intention has not been fulfilled and employment law and practice have become difficult and complex. But where Parliament has apparently decided not to incorporate into employment tribunal practice a set of requirements such as those in CPR r 3.9, I do not think it proper for the courts to incorporate them by judicial decision. It is one thing to say that the employment tribunals should apply the same general principles as are applied in the civil courts and quite another to say that they are obliged to follow the letter of the CPR in all respects. It is one thing to say that the employment tribunals might find a list of CPR r 3.9 (1) factors useful as a checklist and quite another to say that each factor must be explicitly considered in the employment judge's reasons. I would overrule the line of Employment Appeal Tribunal authority which, in effect, requires consideration of all the CPR r 3.9 (1) factors on an application involving relief from a sanction in the employment tribunal."

One of the questions which troubled me at the hearing of this appeal was whether that meant the status of Goldman Sachs v Montali was therefore questionable. It is one of the authorities referred to in paragraphs 35 to 46 of her Judgment but when I put the point to counsel they both suggested that the statement about overruling authorities in this Tribunal in the last sentence of paragraph 47 never included Goldman Sachs v Montali. Having reflected on the matter I now accept that they are quite correct.

1. Firstly, although Goldman Sachs v Montali is a case suggesting this Tribunal should follow the practice "spelt out" in the civil jurisdiction it has nothing to do with relief from sanction or the CPR Part 3.9 (1) "check list", which is what Smith LJ refers to specifically. HHJ Clark was referring to paragraph 6.4 of 29PD.6, which is entirely different. Secondly, Goldman Sachs v Montali was decided before the first case referred to by Smith LJ as dealing with the CPR Part 3.9 "check list", Maresca v Motor Insurance Repair Centre [2005] ICR 197. Thirdly, although possibly not compelling but, nevertheless, somewhat comforting, the editor of the Industrial Cases Report of Governing Body of St Albans Girls' School v Neary refers in the headnote to only the first of a series of cases mentioned by Smith LJ as relating to the CPR Part 3.9 "check list", Maresca v Motor Insurance Repair Centre [2005] ICR 197, as having been overruled. Whilst this might be thought unduly restrictive and incompatible with the expression "line of employment appeal tribunal authority" (an expression which naturally means more than one) it is difficult to see how Smith LJ can have intended that a case decided before any line of authority started and not dealing with that specific topic should be included.

1. Fourthly, although again, perhaps, not compelling (because Governing Body of St Albans Girls' School v Neary appears not to have been cited and is certainly not referred to in the Judgment), Goldman Sachs v Montali was subsequently followed by a division of this Tribunal, comprising Mr Recorder Luba QC, in the case of [Bonkay-Kamara v Apcoa Parking UK Ltd]() UKEAT/0577/12/RN and UKEAT/0431/13/RN (see paragraph 17 and 18 of the Judgment). Fifthly, in Harris, an appeal which concerned a strike out (citation above at paragraph 21 of this Judgment), whilst Langstaff J, in giving the Judgment of a division of this Tribunal, referred to Goldman Sachs v Montali as being "the start of a chain of cases relating to the approach in respect of giving relief from sanction that was considered by the Court of Appeal in Neary" (see paragraphs 28 and 29), he does so without suggesting that it has been overruled. If, on the contrary, paragraphs 28 and 29 of Harris should be read as impliedly stating that the latter has overruled the former, then with the greatest respect, I venture to suggest this goes too far. In support of that conclusion, I repeat that Goldman Sachs v Montali is not a case about relief from sanction. Moreover, whilst the suggestion made by HHJ Clark at paragraph 26 is one of following "the same principles as those spelt out in the Civil Procedure Rules" what is applied in that case, whilst it is "spelt out" in 29PD.6, is really not a CPR Rule but the much older universal principle of restricting challenges to the finality and certainty of orders and the integrity of judicial orders and decisions to specified circumstances (i.e. matters that the Court of Appeal have identified as lying beneath the surface of the CPR).

1. Sixthly, and allied to the last point, whilst, in the same way as Governing Body of St Albans Girls' School v Neary rejected slavish adherence to the rubric of CPR Part 3.9, whereas Harris rejects the argument that the 2013 Rules of Procedure are coupled to the CPR to the extent relief from sanction in the context of the Employment Tribunal must be approached via the Court of Appeal's decision in Mitchell v Newsgroup Newspapers Ltd [2013] EWCA Civil 1537, Langstaff J also recognised "there is much in principle that applies to both" (i.e. the CPR and the 2013 Rules of Procedure) even though the overriding objective contained in the latter is not the same as that in the CPR (see paragraphs 32 and 33 of the Judgment).

1. In the context of the Employment Tribunal there is one example in the authorities cited to me of misstatement or, perhaps more accurately, omission. This is the decision of a division of this Tribunal presided over by Underhill J, the then President, in Newcastle upon Tyne City Council v Marsden [2010] ICR 743. The misstatement/omission there was that counsel failed to tell the Employment Tribunal that he had advised the Claimant not to attend the hearing and failed to request that the proceedings be adjourned so as to enable him to do so. The claim having been dismissed in his absence the Claimant sought and was granted a review, the result of which was that the dismissal of his claim was revoked (see the discussion in paragraphs 15 to 19 of the Judgment). It was this revocation which was unsuccessfully appealed.

1. In my judgment the following emerges from the above consideration of the Rules and authorities relating to the CPR and the Employment Tribunal Rules:

a. the draftsmen⁸ of both sets of Rules must be taken to have drafted them with the same universal principle in mind, namely what I have described as finality and certainty of decision and orders and the integrity of judicial decisions and orders; this principle, as the authorities in both jurisdictions illustrate, usually directs any challenge to an order towards an appeal to a Tribunal of superior jurisdiction and discourages seeking the same Judge or another Judge of equivalent jurisdiction to look again at an order or decision, save in carefully defined circumstances;

b. although the only reference in either set of Rules to a "change in circumstances" is in a Practice Direction to the CPR and not in the CPR itself (and there is no explicit reference to a "material change in circumstances" in either) the principle, as it emerges from the authorities referred to above is that before a Judge can interfere with an earlier order made by a Judge of equivalent jurisdiction there must be either a material change of circumstances or a material omission or misstatement or some other substantial reason, which, taking account of the warning Rix LJ gives against attempting exhaustive definition, it is not possible to describe with greater precision;

c. when it comes to long standing procedural principles such as this, unless the rubric of the Rules clearly indicates the contrary, that principle should be taken to have been in the mind of the draftsmen when the Rules were drafted and the Rules must be interpreted so as to take account of such a principle;

d. the draftsmen of the current Employment Tribunal Rules have used the expression "necessary in the interests of justice"; in my judgment that should be interpreted through the prism of the principle I have just articulated; variation or revocation of an order or decision will be necessary in the interests of justice where there has been a material change of circumstances since the order was made or where the order has been based on either a misstatement (of fact and possibly, in very rare cases, of law, although that sound much more like the occasion for an appeal) or an omission to state relevant fact and, given that definitions cannot be exhaustive, there may be other occasions, although as Rix LJ put it these will be "rare … [and]... out of the ordinary".

1. This leaves the critical issue, so far as this appeal is concerned, as to whether this is all a matter of the exercise of discretion. In Tibbles Rix LJ said in relation to the distinction between "jurisdiction" and "discretion" *"there is in all probability no line to be drawn between the two". This takes "discretion" a very long way but in my judgment it does not support Mr Blackwood's submission that whether or not an order should be varied or reversed is all a matter of discretion and, therefore, no matter how much I might disagree with REJ Parkin, I can only ask whether his characterisation of the arrival of a substantial list of issues as a "material change in circumstances" was outside "a wide ambit within which generous disagreement is possible" or whether he had "reached a decision that is so outrageous in its defiance of logic that it can be described as perverse" (see paragraphs 1 and 2 of Harris). Rix LJ refers at paragraph 39(i) of Tibbles to "a principled curtailment of an otherwise apparently open discretion" and it seems to me that if the concept is not to become too elusive (I might say slippery) it requires a degree of fixity that makes the "curtailment*" capable of objective assessment in objective terms.

1. As I observed above at paragraph 29 of this Judgment, paragraph 31 of the Judgment of the Court of Appeal in Thevarajah seems to me absolute in its analysis. I cannot detect in it anything of the scrutiny of an exercise of discretion as suggested by Langstaff J in paragraphs 1 and 2 of Harris. To my mind Richards LJ approached the suggested change in circumstances in Thevarajah objectively and absolutely and concluded that the subsequent disclosure could not be described as a material change in circumstances on any basis. He was definitely not asking whether such a conclusion was within the ambit in which reasonable disagreement is possible. I therefore incline to the view that whether or not a subsequent event amounts to a material change in circumstances is, as Rix LJ put it, a matter of "jurisdiction" and not a question of the exercise of discretion. In other words I would hold that whether or not there has been a change of circumstances and whether or not that change is material is a matter to be decided from an objective standpoint and by asking whether the circumstances changed and whether that matters not from the point of view of a band of reasonableness but from the point of view that either the factual matrix can support that view or it cannot.

1. In my judgment the list of issues cannot be regarded as a material change of circumstances. Indeed I cannot regard it as any real kind of change at all. It is true that it provides a more detailed analysis of the case but the case itself remains the same. To my mind the problem with the decision made by REJ Parkin is that having acknowledged, as he did at paragraph 2 of his Reasons, that EJ Coles "was fully aware of the claim of unfair dismissal for the inadmissible reason of making a protected disclosure", he then proceeded on the basis that what had changed by the preparation of the list of issues was the perception of the case. But all of this presupposes that EJ Coles, who had made his decision after consideration of the extensive pleaded case, and not only in the knowledge of the interrelated issues but, as seems likely, because of them, had done so on a partial and inadequate awareness of the future complexity of the case. The danger of such an approach, to my mind, is that it involves deciding what EJ Coles "can have envisaged at his initial hearing". Once a later Judge starts asking what an earlier Judgment had in mind that seems to me to reveal that the Court or Tribunal has started to tread where it should not.

1. I have no doubt whatsoever that REJ Parkin acted from the very best of motives and believed that the decision he was taking was necessary in the interests of justice in order to move the case onwards after the Judicial Mediation had been unsuccessful and eaten into the timetable. Moreover, I recognise that in deciding, as I do that there was no material change in the circumstances in this case, I am making a decision that disrupts the timetable. But I am not case managing the matter; I am considering an appeal against the order made by REJ Parkin and I have come to the conclusion that, however inconvenient it may be, REJ Parkin should not have interfered with the Coles Order. In my judgment, objectively viewed, there was not a proper basis for him to do so.

1. If, because this is not a matter of "jurisdiction" but is a matter of "discretion", I am wrong as to that, I would still reach the same conclusion on the exercise of discretion and, essentially, for the same reasons. Even if this is a matter of discretion and I must approach it from the point of view as to whether such a conclusion was within the ambit in which reasonable disagreement is possible, then I regard it as not simply a matter of whether REJ Parkin and I disagree about the list of issues amounting to a material change in circumstances. In this case I would go so far as to say that in reaching such a conclusion REJ Parkin made an error of law because the list of issues is not a material change in circumstances and nobody can regard it as such. I repeat my view that the list of issues, distilled no doubt from the respective pleadings, makes no difference to the nature of the case. All that the list does is explain what has to be decided and it is not a material change. In my judgment that is not simply my view as opposed to the view expressed by REJ Parkin but it amounts to the only view which can be held in relation to whether the list of issues changes any of the circumstances of the case so as to permit revision or reconsideration of the Coles Order.

1. I accept that the other matters in paragraph 5 do represent the exercise of judicial discretion and I see no basis for suggesting that they lie outside the ambit within which reasonable disagreement is possible. They are all factors, it seems to me, which REJ Parkin was entitled to consider in deciding whether it was necessary in the interests of justice and consistent with the overriding objective to dispense with the Preliminary Hearing. In my judgment no error of law arises as a result of them. But there is an error of law in relation to material change of circumstances.

1. Accordingly, I will allow the appeal. The Coles Order must be restored and a separate Preliminary Hearing listed. I leave it to the good sense of the parties to decide how that might be accommodated. If that means that the hearing listed to start on 29 February 2016 cannot proceed I am very sorry for that but as I explained in the previous paragraph my function is to decide this appeal. If the parties can arrive at any alternative solution I will leave that for them to discuss with REJ Parkin.

1. If either party wishes to make any submissions in relation to the view that I have expressed as to the significance of paragraph 31 of the Judgment of the Court of Appeal in Thevarajah then such submissions will have to be made in writing and in early course. I will wait to hear from the parties on that matter.

Notes