The defendant obtained an award in its favour, regarding losses relating to damage to a propellor on a vessel. The central issue in the arbitration had been whether the damage was sustained during a grounding incident in North Carolina (as the claimant contended) or subsequently, when the vessel was navigating icy conditions in Quebec (as the defendant contended). The tribunal found in favour of the defendant, holding that the admission made on behalf of the defendant that "some minor damage had probably been sustained" during the grounding incident was of "very limited significance".

The claimant obtained leave to appeal the award under section 69 of the Act. Burton J granted leave in view of the tribunal's apparent finding that some propellor damage had probably been sustained during the grounding incident, notwithstanding the defendant's repeated denial that it had made any admission on that issue.

The defendant subsequently applied to the tribunal to clarify and correct its award. The tribunal accepted that the defendant had never conceded that some damage had probably been sustained during the grounding incident. It made an additional award, amending the original award to state that it was "possible" that some damage had been sustained during the grounding.

The claimant argued that the only course open to the defendant if it wanted the court to set aside the order granting the claimant leave to appeal, was to appeal the order granting leave to the Court of Appeal, having first obtained leave to do so pursuant to section 69(6). The time for such an appeal had expired.

However, the court held that CPR 3.1(7), which enables the court to vary or revoke an order, applied because the court had the power to make the order granting leave to appeal under section 69, by virtue of CPR 23.8 and PD 62.12.12. Those provisions enable the court to grant permission to appeal without a hearing. The court relied on the views expressed in Roult v North West Strategic Health Authority [2009] EWCA Civ 444. In that case, the Court of Appeal indicated that CPR 3.1(7) was not confined to purely procedural or case management orders. However, the discretion it conferred would normally be exercised only where the judge who made the order had been misled, or a subsequent event had destroyed the basis on which the original order had been made. On the facts of this case, Field J did not consider that Burton J had been misled as to the extent of the defendant's "admission" on the propellor damage issue.

Field J commented that it was not possible or advisable to define the circumstances in which the jurisdiction under CPR 3.1(7) may be exercised. However, they included situations where the court had been misled or where a fundamental change of circumstances had destroyed the basis on which the order had been made.

Field J held that, alternatively, the court had the power to set aside the order under its inherent jurisdiction, especially where the court making the original order was misled.

Although, on the facts of the case, the court declined to set aside the order granting leave to appeal the award under section 69, the case confirms that the court has the power to do so, both under CPR 3.1(7), and under its inherent jurisdiction.

Case: Latvian Shipping Company v The Russian People's Insurance Company (Rosno) Open Ended Joint Stock Company [2012] EWHC 1412 (Comm) (1 June 2012).