Court of Appeal refuses to set aside Consent Order reflecting settlement

by owainrhysjames

Julian Watson v (1) Sadiq (2) Sadiq [2013] EWCA Civ 822

 

W and S were parties to property litigation which had proceeded to four-day trial before Mr Recorder Bueno QC. During that trial the judge indicated on multiple occasions that the parties ought to try and settle the case and adjourned several times to allow negotiations to take place. Eventually, the parties agreed a compromise on the fourth day. The agreement was contained in a schedule to a Tomlin order.

W appealed the consent order arguing that it should be set aside on the basis that it was vitiated by duress or was absent of true consent. It was further argued that the judge had improperly intervened and pressured him to settle the case thus giving rise to an unfair trial process in breach of Article 6 of the ECHR. In particular it was submitted that the persistent adjournment rendered a conclusion of the trial within the allocated time of four days impossible.

The Court of Appeal held that there were no grounds for setting aside the consent order. There was no doubt that the terms of the schedule amounted to a contract between the parties. The CPR had no application to the schedule of a Tomlin order which, in fact, was not an order of the court at all. A different principle applied to the order itself, however. Where a variation of the order is contrary to the agreement of the parties a major consideration for the court was the very fact of that agreement. As W sought to set aside the entirety of the order it necessarily followed that he had to demonstrate that the Schedule to the order, which contained the contract, be set aside because of some feature of contract law vitiating his consent. On the instant appeal, heard on the papers and without witness evidence, to find that the Schedule be set aside on any such basis.

 

Dealing with the second ground of appeal the Court accepted that it was within a judge’s function to indicate that a matter appeared to be one suitable to settlement. In expressing such a view it was proper that a judge enquire as to whether avenues for settlement had been fully explored and, if it emerged that settlement may be possible, he might allow the parties time out of court at any stage of the proceedings to enable the possibilities of compromise to be fully explored. A judge should, however, bear in mind the interests of both parties and other litigants waiting for cases to be heard, that the time allowed to settle did not disable the court from dealing with the proceedings should the matter fail to settle. Where the parties allowed such a situation to develop the judge was not to be criticised, however. There had not been a breach of Article 6. The judge had identified difficulties in dealing with the matter in the allocated time in light of the parties’ poor preparation. Encouraging settlement may have had an impact on trial management though not to such an extent as to offend the principles of Article 6. In any event, W had affirmed his consent to the agreement in correspondence. The Court of Appeal expressly indicated that the fact that W was a litigant in person did not alter his affirmation of the settlement agreement.

 

The judgment identifies some of the issues which may arise in litigation, particularly where the matter is not fully prepared, and the courts’ emphasis on settlement. Though the judge’s numerous adjournments had impacted on the timetable this was seen as an acceptable disruption in light of the possibility of settlement. The arguments as to setting aside are useful in illustrating the true nature of Tomlin orders and specifically the contractual nature of the schedule contained therein.