[3] Civil Procedure Rules ('CPR') r.3.3 is entitled 'Court’s power to make order of its own initiative' and CPR r.3.3(1) reads:

'Except where a rule or some other enactment provides otherwise, the court may exercise its powers on an application or of its own initiative.'

There are 2 aspects to this:

(1) 'Except where a rule or some other enactment provides otherwise...'

(2) 'the court may exercise its powers on an application or of its own initiative'

Looking at (2):

The Court is empowered to make order, even when there is no application for an order, before the Court.

Where the Court is proposing to make an order of its own initiative, the Court can choose to:

(a) delay making the proposed order, and invite the parties who may be affected by it, to make representations upon the proposal, first; or

(b) make the proposed order, with the parties then, upon receipt, having the option (if so advised), to make a prompt application to the Court, for an order, setting aside the order made without a hearing on the Court's initiative.

As to (a) above, CPR r.3.3(2) and (3) read:

'(2) Where the court proposes to make an order of its own initiative-

(a) it may give any person likely to be affected by the order an opportunity to make representations; and

(b) where it does so it must specify the time by and the manner in which the representations must be made.

(3) Where the court proposes-

(a) to make an order of its own initiative; and

(b) to hold a hearing to decide whether to make the order,

it must give each party likely to be affected by the order at least 3 days’ notice of the hearing.'

As to (b), see the main body of this article - Possession Proceedings - have Practice Direction 55A, paragraphs 8.1 to 8.4.

Looking at (1) (non-exhaustively) - where CPR r.81 contempt proceedings  (basically, non-CPR r.71 contempts - see CPR r.81.6(3) - (Westrop v Harrath [2023] EWCA Civ 1566 (Coulson LJ, Moylan LJ and Lewison LJ), paragaph 50 onwards)

[4] '3.3(4) Order' a reference to CPR r.3.3(4), which reads:

'The court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations.'

This (i.e '3.3(4) Order') is a label that has been coined for this convenience in this article. For the avoidance of doubt, it is not used as a label in any statute or the CPR/Practice Directions, nor in any reported authorities.

[5] Three points here:

(1) a typical CPR r.3.3(5)(b) notification might read as follows:

'This order was made without a hearing pursuant to Civil Procedure Rules Part 3.3(4). You have the right to make an application to the Court to vary or set asie this order, but you must do it within 7 days of you getting this order.'

(2) a typical notification during an appeal process (in a chancery appeal), akin to under CPR CPR r.3.3(5)(b), would read as follows:

''This Order has been made by the court without a hearing pursuant to CPR PD 52B paragraph 7.1. Any party affected by the order may apply to have it set aside or varied within 7 days of the date of service upon that person. The application may be made by CE-filing a letter of request under the appeal reference number above, or alternatively by email to ChanceryJudgesListing@justice.gov.uk or by post to the Chancery Appeals Office, Rolls Building, 7 Rolls Buildings, Fetter Lane, London EC4A 1NL quoting the above appeals reference number. A copy of the application must be served on all other parties at the same time.'

(3) A failure by the court to include a CPR r.3.3(5)(b) notification in its 3.3(4) Order - does that affect the 3.3(4) Order's validity? The law has become unclear as a result of a recent authority - Westrop v Harrath [2023] EWCA Civ 1566 (Coulson LJ, Moylan LJ and Lewison LJ) ('Westrop'):

(a) In R. (Kuznetsov) v Camden LBC [2019] EWHC 3910 (Admin); [2020] Costs L.R. 1113 ('Kuznetsov'), Mostyn J recorded (paragraph 18) that the key impugned 16.5.19 costs order (paragraph 1) in the case before him, did not have a CPR r.3.3(5)(b) notification, before stating, at paragraph 18:

'...but that does not, in my judgment, affect its validity.'

(b) In Westrop, a suspended committal order was made without a hearing under CPR r.71, against a judgment debtor. The judgment debtor appealed on many points. Coulson LJ gave the only judgment (Moylan LJ and Lewison LJ agreed) and he decided that Ground 3 was made out and that '[t]he judge had no power to make the suspended committal order' (paragraph 37). After going into a little more detail about why Ground 3 succeeded, he said, in paragraph 37:

'That was the principal reason why, at the end of the appeal hearing, we announced that the suspended committal order ... must be set aside. However, for completeness, I go on to deal with the other points raised by [counsel for the judgment debtor] in respect of r.71.8.'

With that noted, we can turn to paragraphs 46 to 49, where Coulson LJ considered Ground 7 - the ground relevant to this article. Coulson LJ said:

'Ground 7 complains that, because the order was made without a hearing, it should have contained a statement of [the judgment debtor's] right to make an application to have the order set aside, varied or stayed in accordance with r.3.3(5). That rule provides that “where the court has made an order of its own initiative…without hearing the parties or giving them an opportunity to make representations…the order must contain a statement of the right” to apply to set aside, vary or stay the order. No such statement was included in the committal order and, so it is therefore said, the order was unjust because of a serious procedural irregularity.

Can it be said that the suspended committal order was made on the court’s initiative? I think it can. I accept that authorities such as Shawston Engineering Ltd v DGP International and Anr [2003] EWCA Civ 1956, where the judge transferred a case from Liverpool to London without any reference to the parties, may be rather more obvious examples of a court acting on its own initiative. However, I think that a suspended committal order is made on the court’s initiative. 71PD.6 requires a judge or court officer to certify in writing the judgment debtor’s non-compliance with the order for attendance. Thereafter, r.71.8(1) states that “the court will refer the matter to a High Court Judge”. That is a process undertaken at the court’s own initiative.

The need for a notice setting out the right to seek to set aside, vary or stay the order is not a point addressed directly in [Broomleigh Housing Association Ltd v Emeka Okonkwo [2010] EWCA Civ 1113; [2011] H.L.R. 5]. I had wondered whether the fact that the order under r.71.8 was suspended until the return day was sufficient protection, but I am persuaded that it was not. I consider that, if a committal order was wrongly made, then the alleged contemnor is entitled as of right to challenge it, and should not have to wait for the return day in order to do so. Furthermore, the universality and mandatory nature of r.3.3(5) – there are no qualifications to the requirement that the order must contain a statement setting out the right to set aside, vary, or stay – lead inexorably to the conclusion that the suspended committal order should have contained the r.3.3(5) notice.

The suspended committal order in this case did not contain a r.3.3(5) notice. I note that it contained a notice of [the judgment debtor's] right of appeal under Part 52, but that is a very different thing. Accordingly, I consider that Ground 7 has been made out.'

Nowhere does Coulson LJ refer to Kuznetsov, nor indicate that the Court of Appeal was referred to it, which is unfortunate. But: (a) the Court of Appeal would not be bound by Kuznetsov; and (b) Mostyn J did not set out reasons for how he reached the conclusion he did. Mostyn J simply asserted his conclusion on the point.

[6] This quote is part of a wider passage in Haley v Siddiqui [2014] EWHC 835 (Ch)('Haley'). Judge Hodge QC, sitting as a judge of the High Court, in Haley stated, in paragraph 15:

'In my judgment, on such an application to review an order made without a hearing and/or of the court's own initiative, the restrictions upon applications for relief from sanctions, as set out by the Court of Appeal in the case of Mitchell -v- News Group Newspapers Limited [2013] EWCA Civ 1537 [now reported at [2014] 1 WLR 795], have no application. In my judgment it is wrong to approach an application to set aside an order made without a hearing, or of the court's own initiative, as though the restrictions on an application for relief from sanctions apply. CPR 3.8 makes it clear that where a party has failed to comply with a rule, practice direction or court order, any sanction for failure to comply imposed by the rule, practice direction or court order has effect unless the party in default applies for and obtains relief from the sanction. That has no application to a situation where the court's order, made without a hearing and of its own initiative, is imposing a sanction for the first time. It is only in cases where a party has failed to comply with a sanction that an application under CPR 3.9 is necessary; and it is only in that situation that the restrictions in Mitchell and subsequent cases apply. As was made clear in Mitchell (at paragraph 45), on an application for relief from a sanction, the starting point should be that the sanction has been properly imposed and complies with the overriding objective. In my judgment, no such assumption applies where a sanction has been imposed by an order made without a hearing, or of the court's own initiative, and an application is made to vary it or set it aside.'

On the facts in Haley, an order was made on the court's own initiative without a hearing on 6.12.13 (i.e the '3.3(4) Order' order/impugned order), and the claimant applied on N244, asking:

'the court to make the following orders: (1) The order dated [6.12.13]...be rescinded. (2) The claimant be granted relief from sanctions in respect of the order dated [6.12.13]' (paragraph 4)

The DJ failed to consider (1) and just determined that application in relation to (2). On appeal, this was held to be a fundamentally false basis for determining the application (paragraphs 13 and 16). The appeal was allowed and the 6.12.13 order was set aside.

Because Judge Hodge QC thought the DJ had been lead astray by the claimant's presentation of the application, Judge Hodge QC imposed the expense of obtaining a transcript of the DJ's decision, upon the claimant. At paragraph 20, Judge Hodge QC said:

'In my judgment the circumstances of the present case afford a salutary lesson potentially to other litigants in other litigation in ensuring that applications to the court to set aside orders made without a hearing, or of the court's own initiative, are properly presented as such, and not simply as applications for relief from sanctions. Because of that, and pursuant to the power I have to make an order subject to conditions, I will make it a condition of giving permission to appeal, and allowing the appeal, that a transcript of this judgment will be obtained at the expense of the claimant.'

[7] In Al-Zahra (PVT) Hospital v DDM [2019] EWCA Civ 1103 ('Al-Zahra'), a mother (the respondent on the second appeal) issued: (1) a claim in England against a Dubai Hospital and individual doctors/medics (the appellants on the second appeal) in relation to medical negligence (a 'wrongful birth' claim - paragraph 3); (2) an application to serve the (same) claim form out of the jurisdiction; and (3) an application for an extension of time of 11 months for serving the claim form (over and above the 6 months already allowed by the CPR for service out of the jurisdiction - paragraph 14)(the 'First Extension Application'). On 25.9.15, the First Extension Application was granted by Master Cook. On 4.10.16, a second extension application (the 'Second Extension Application') was made, and on 17.10.16 granted by Master Cook (the Second Extension Application made on that basis that a further extension was necessary, as there had been delays in arranging for service of the documents)(paragraph 18). Note, these were orders made, not on the court's initiative, but 'on an application'.

Between 0.2.17 and 0.4.17, service of the claim form took place on (most of the) defendants. On 20.4.17, the Dubai Hospital and (most of the) individual doctors/medics applied under CPR r.23.10 to the English court, for orders setting aside both extensions of time orders (the 'Set Aside Applications'). On 12.7.17, Master Cook heard the Set Aside Applications and, after refusing the mother an adjournment to obtain more evidence, determined: (1) not to set aside the First Extension Application Order; but (2) did set aside the Second Extension Application order.

On the first appeal [2018] EWHC 346 (QB), brought by the mother (paragraph 29), Foskett J held that Master Cook on 12.7.17 had been wrong to refuse the mother's application for an adjournment to obtain more evidence, and allowed the appeal against Master Cook's 12.7.17 decision. In other words, Foskett J held that both extensions of time had been properly granted (paragraphs 2 and 31) and so Master Cook should not have set aside the Second Extension Order. Foskett J was critical of Master Cook approaching the determining the Set Aside Applications, as one of reviewing the earlier First Extension Application Order and Second Extension Application order, rather than holding a rehearing.

Under the subheading 'Procedural Aspects', Foskett J said, at paragraph 62:

'The nature of a hearing to set aside an extension order and an appeal from a decision made at such a hearing were considered in Hashtroodi at [33]:

"It is common ground that in the events which have occurred here, the appeal to this court is a rehearing, rather than a review of the decision of [the deputy master who considered the application to set aside the extension order of the Master]. This is because … an application under CPR 23.10(1) to set aside an order obtained without notice should involve a rehearing of the issue, and not a review of the decision that it is sought to set aside; but, in the present case, the deputy master conducted the application as if it were a review of the decision of [the Master]."

Note the reference to the case of 'Hashtroodi' is a reference to: Hashtroodi v Hancock [2004] EWCA Civ 652, [2004] 1 WLR 3206.

Foskett J then said, at paragraph 63:

'It follows that, to the extent that it is relevant and material, the hearing before Master Cook on [12.7.17] was a rehearing of the issue whether to grant the extensions of time, not a review of his earlier decisions...' (the same point is made, again, in paragraph 65; see also paragraph 72)

On the second appeal, brought by the Dubai Hospital (and individual doctors/medics (paragraph 32)), in the Court of Appeal, Haddon-Cave LJ (with whom David Richards LJ and Sir Timothy Lloyd agreed) agreed with Foskett J on this point. At paragraphs 67 and 68, Haddon-Cave LJ said:

'In my view, Foskett J was correct to hold that, if and in so far as Master Cook approached the hearing before him as a review rather than a rehearing, Master Cook was in error. Foskett J appropriately cited (at [62]) the following passage from paragraph [33] of Dyson LJ's judgment in Hashtroodi in which Dyson LJ made it clear that an application under CPR 23.10(1) to set aside an order obtained without notice should involve a rehearing not a mere review:

"[33] It is common ground that in the events which have occurred here, the appeal to this court is a rehearing, rather than a review of the decision of [the deputy master who considered the application to set aside the extension order of the Master].

This is because … an application under CPR 23.10(1) to set aside an order obtained without notice should involve a rehearing of the issue, and not a review of the decision that it is sought to set aside; but, in the present case, the deputy master conducted the application as if it were a review of the decision of [the Master]." (emphasis added)

On this basis, Foskett J was correct to conclude that Master Cook had misdirected himself as to the nature of the hearing before him; and it was, therefore, open to Foskett J to remake the relevant decisions determined by Master Cook, including the question of admitting further evidence from the Claimant.'

In the event, the Court of Appeal overturned Foskett J's decision to set aside Master Cook's 12.7.17 decision in respect to the Second Extension Order.

Note there is also the case of R. (Kuznetsov) v Camden LBC [2019] EWHC 3910 (Admin); [2020] Costs L.R. 1113 ('Kuznetsov'), a decision of Mostyn J on 21.11.19 in the High Court. A few things to note:

(1) Al-Zahra is Court of Appeal, whereas Kuznetsov is High Court; but

(2) Kuznetsov (21.11.19) was decided after Al-Zahra (27.6.19); though

(3) Al-Zahra was not cited in Kuznetsov. Indeed, Mostyn J was under the mis-impression that there were no authorities on point. Mostyn J in Kuznetsov:

'It is surprising that there is absolutely no authority on the point, notwithstanding that this rule has been in existence since 26 April 1999. Twenty years have passed and there has been no decision as to what legal standard the court should apply in considering an application to set aside an order made without a hearing and on the papers.'

Mostyn J judgment in Kuznetsov is, in the author's view, therefore per incuriam. Thinking he had to formulate a test, Mostyn J judgment in Kuznetsov said, after drawing some inspiration from Samson v Samson [1966] P52, at paragraph 24:

'In my judgment, I would formulate the test as follows, that the court should give due weight to the decision of the judge who dealt with the matter without a hearing and should be able to identify a good reason for disagreeing with his or her decision. That is the standard I shall apply in judging this application.'

It is respectfully suggested that Al-Zahra should followed ahead of Kuznetsov (following the White Book 2022 commentary, para 3.3.2, where it uses the word 'but')