Court rules – Judgments and orders – Revocation – Settlement

Greg Anthony Roult (by his mother and litigation friend Angela Holt) v North West Strategic Health Authority: CA (Civ Div) (Lords Justice Carnwath, Hughes, Lady Justice Smith): 20 May 2009

The court was required to determine whether rule 3.1(7) of the Civil Procedure Rules could be used to revoke a judge’s approval to a final settlement for the future care costs of the appellant (R) in personal injury proceedings against the respondent local health authority.

R was starved of oxygen at birth and suffered from cerebral palsy. He was severely disabled and was cared for at home by his parents. The health authority accepted liability for R’s injuries, and the parties reached a settlement for damages, which was approved by a judge. The settlement stated that R would be cared for in a specialist group home, as opposed to living in privately bought accommodation with the need of full-time care staff, which would be quantified at a later date. R served a revised schedule of the outstanding claim, which sought damages for future care in privately obtained accommodation with privately engaged carers. He stated that he had moved into a group home but left shortly afterwards, on the grounds that it was, and would always be, unsuitable.

The health authority sought referral back to the court as to whether R could pursue such a claim. The judge held that the approved final settlement could not be revoked. R submitted that (1) the court’s power to vary or revoke an order under rule 3.1(7) was a general one and extended to the order approving the settlement. He argued that it could be exercised where the original order had been followed by an unforeseen event that destroyed the assumption on which it was made; (2) by analogy, the jurisdiction exercised in family cases that relief orders made by consent could be varied out of time, were applicable.

Held: (1) Rule 3.1(7) could not constitute a power in a judge to hear an appeal from himself in respect of a final order, Customs and Excise Commissioners v Anchor Foods Ltd (No3) Times, 28 September 1999 Ch D, Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen [2003] EWHC 1740 (Ch) and Collier v Williams [2006] EWCA Civ 20, [2006] 1 WLR 1945 applied. If it could, it would come close to permitting any party to ask any judge to review his own decision, and in effect to hear an appeal from himself, on the basis of some subsequent event. It would certainly permit any party to ask the judge to review his own decision when it was not suggested that he had made any error. Rule 3.1(7) was essentially applicable to case management decisions, and did not apply where the order was founded upon a settlement agreed between the parties after detailed and skilled advice. The approved settlement was a final disposal of many of the issues between the parties. It was in no sense a case management order, and the fact that there remained issues that did need managing towards future disposal did not alter that position.

(2) The jurisdiction in family cases was not applicable to rule 3.1(7), Barder v Caluori [1988] AC 20 HL, S v S (ancillary relief: consent order) [2002] EWHC 223 (Fam), [2003] Fam 1 and Harris (formerly Manahan) v Manahan [1996] 4 All ER 454 CA (Civ Div) distinguished. The CPR had never applied to family proceedings, was not in existence at the time of most of the authority in question and had no precursor in the Rules of the Supreme Court. In addition, rule 1 of order 37 of the County Court Rules provided in the county court an explicit power to rehear a case, which did not exist in the High Court.

Appeal dismissed.

Stephen Grime QC (instructed by Lonsdales) for the appellant; David Westcott QC (instructed by Hempsons) for the respondent.