The Court's Power to Vary and Revoke Orders under CPR 3.1(7)

The recent case of UniCredit Bank GmbH v RusChemAlliance LLC [2025] EWCA Civ 99 (UniCredit), has re-affirmed the court’s power under Civil Procedure (‘CPR’) Rule 3.1 (7) to discharge or vary an earlier court order.

The court’s general powers of management are set out in CPR Rule 3. Rule 3.1(7) states “a power of the court under these rules to make an order includes a power to vary or revoke the order.”

This is a discretionary rule, with potentially wide-reaching implications. The court, keen to avoid the undesirability of litigants having ‘two bites at the cherry’ have been keen emphasise that “the jurisdiction under order 3.1(7) is not a substitute for an appeal”.

Application of the Rule 

A leading case on the application and scope of the court’s power under Rule 3.1(7) is Tibbles v SIG Plc [2012] EWCA Civ 518, in which the Appellant (Tibbles) unsuccessfully appealed against a decision that a district judge had been wrong to vary an order under CPR r.3.1(7).

At detailed assessment Tibbles realised that £20,000 of costs incurred prior to the claim’s reallocation from the small claims track had been missed, owing to the default operation of CPR r.44.11 (whereby costs incurred prior to reallocation would be dealt with under the small claims track rules) being mistakenly overlooked.

Almost 11 months after the claim’s relocation, Tibbles made a successful application to vary the order so that costs incurred before reallocation would be treated as costs in the fast track, which SIG subsequently successfully overturned. Tibbles’ appeal, that as a matter of discretion the District Judge had been correct to vary the order, was dismissed. 

The court considered numerous cases concerning Rule 3.1(7), and concluded that the jurisprudence leant towards there being “a principled curtailment of an otherwise apparently open discretion”, without the court necessarily seeking to attempt an exhaustive definition of the circumstances in which such discretion may arise. Lord Justice Rix considered that as a matter of principle the discretion may be appropriately exercised:

• where there has been a material change of circumstances since the order was made, or 

• where the facts on which the original decision was made were (innocently or otherwise) misstated.

The promptness or otherwise of the application was also considered to be a relevant factor, with the court concluding that prejudice was caused to the respondent by Tibbles’ failure to seek the variation of the order promptly.

UniCredit, a German bank applied under CPR r3.1(7) to revoke or vary the final anti-suit injunction, that it sought and obtained against RusChemAlliance LLC (‘RCA’), a Russian corporation.

UniCredit and RSA were parties to bonds totalling over €453 million that were governed by English law and provided for arbitration in Paris. The dispute arose when RSA demanded payment under the bonds and UniCredit claimed it was unable to pay. RSA thereafter began proceedings in Russia. 

UniCredit subsequently issued proceedings in England to restrain RSA’s claim before the Russian court. In January 2024, the Court of Appeal made a final anti-suit injunction restraining RCA from pursuing proceedings in Russia on the basis that it was in breach of the arbitration agreement. During those proceedings, RCA agreed to be bound by the injunction and agreed that the Russian Court would respect the orders made by the English Court. However, RCA subsequently obtained a ruling from the Russian court which prohibited UniCredit from initiating proceedings except in Russia, obliged UniCredit to take all measures within its control to cancel the effect of the injunction, and provided that if UniCredit failed to comply, it would have to pay the RCA €250 million by way of a court-imposed penalty. 

UniCredit, subsequently made an application to vary or discharge the injunction awarded by the English Court of Appeal. Lord Justice Males initially considered the application on paper and ordered that it be heard in open court, on the grounds that it raised important issues of principle. Sir Geoffrey Vos, Master of the Rolls, gave the leading judgment.

The granting of the application

The Court Appeal granted UniCredit’s application. In doing so, they considered a variety of factors, as outlined below.

The possibility of a financial penalty for Unicredit

The court considered that a risk plainly existed that if it did not did not accede to UniCredit's application, the Russian Court would still impose the financial penalty on UniCredit and considered that: “this risk cannot be conclusive in our consideration of whether or not the CA's order should be discharged or varied, but it is… one factor that is appropriate to take into account”.

Whether CPR r3.1(7) could be used to vary or revoke a final anti-suit injunction

The court noted that the existing authorities on revocation of a final order under CPR r3.1(7) did not address final injunctions.

The court acknowledged that “the circumstances in which CPR 3.1(7) can be relied upon to vary or revoke a final order are likely to be very rare given the importance of finality" (following Terry v BCS Corporate Acceptances Ltd [2018] EWCA Civ 2422). The question was whether the factors favouring re-opening the order were sufficient to overcome the principle of finality. 

The court considered that there was little logic in the distinction between interim and final orders and that it would create commercial uncertainty if final anti-suit injunctions could not be discharged at all.

It was also of relevance that this was private litigation between commercial parties. The court considered that it would be strange if a party that had obtained an injunction could never return to the court to seek its discharge when circumstances change. 

Whether UniCredit was coerced into the application

The Russian court’s ruling had applied commercial pressure on UniCredit to apply to discharge or vary the injunction and in that sense UniCredit had been coerced into making the application. However, UniCredit was a major bank, capable of making its own decisions. It was making the application because it had decided that it was in its own commercial interests to do so. Accordingly, whilst UniCredit had been coerced into making the application, it was not a weighty factor to weigh against UniCredit’s application.  

English public policy reasons for refusing the application

The court acknowledged that it would be of “great concern if pressure were being applied to this court by a foreign court”. However, the court was satisfied that the Russian judgment was not made against the English courts. It was an entirely in personam order made against, and intended to operate against, UniCredit.

The discretionary balancing exercise led the court to conclude that the Application should be granted for the following reasons: 

(i) UniCredit is a commercial party acting in its own interests and is entitled to tell the court it no longer needs or wants the anti-suit injunction it had previously sought and obtained;

(ii) the fact that UniCredit is acting under commercial pressure is not, for the reasons I have given, a weighty factor in favour of refusing the order it seeks;

(iii) the public policy reasons against making the order that UniCredit seeks also do not weigh heavily in the balance; and 

(iv) in those circumstances, it would be unjust and unfair to force UniCredit to risk massive penalties in Russia that may be avoidable if the CA's order is discharged or varied.”

The court then had to decide if the order be varied or revoked and decided that only the injunctive parts of the rder should be discharged.

The UniCredit case serves as a useful reminder of the possible recourse that litigants may have with respect to orders previously made by the court, which also reaffirms that it can adapt orders in response to evolving circumstances.