Melhuish v Waters

A consent order, once drawn up and sealed, ordinarily has the force of a contract between the parties. It cannot generally be reopened on an appeal merely because a party later alleges that consent was not given. The usual route is fresh proceedings to set aside the order, ordinarily by proving fraud, mistake or absence of consent. The Court of Appeal may potentially intervene under the Civil Procedure Rules 1998 where a decision was unjust because of serious procedural irregularity. An applicant must, however, provide material capable of establishing that irregularity. An unsupported allegation that the applicant protested in court gives no real prospect of success. A late adjournment request may also be refused where there was ample earlier opportunity to apply and no evidence of inability to attend.

The parties were executors of their mother's estate. Mrs Melhuish sought leave to distribute the estate, while Mr Waters claimed an account. At a hearing before Jacob J on 12 November 1999, counsel agreed terms concerning distribution, property and costs, and the judge made an order by consent. The order was drawn up and sealed on 16 November 1999.

Mr Waters later alleged that he had not consented and that his protest in court had been overlooked. An earlier Court of Appeal, comprising Morritt LJ and Charles J, adjourned his permission application to allow him to obtain and listen to the hearing tape. On renewal, the central issues were whether the application should be adjourned and whether the alleged procedural irregularity gave a real prospect of successfully challenging the sealed consent order.

Application dismissed. The court refused both the application for an adjournment and the renewed application for permission to appeal. Costs were assessed at £39.10.

1. Effect of the sealed consent order. Once an order made by consent has been drawn up and sealed, a critical procedural point has been reached. The order has the force of a contract between the parties. The ordinary route for setting it aside is fresh proceedings in which the absence of consent, fraud, mistake or another recognised basis for rescission is proved.
2. Possible procedural irregularity. The earlier permission hearing had identified a possible route under the Civil Procedure Rules 1998, r 52.11(3)(b), if an overlooked protest in the lower court made it unjust to uphold the order. Arden LJ proceeded on the favourable assumption that the rule applied and was sufficiently wide, although its scope and temporal application remained arguable.
3. No evidential basis for intervention. Mr Waters could not substantiate the allegation that he had intervened before Jacob J and protested that the settlement lacked his consent. Mrs Joseph accepted that the tape did not assist the case, and no further evidence was adduced. There was therefore no material on which the court could find a serious procedural irregularity, injustice, or any real prospect of success on appeal.
4. Adjournment. The request was made too late. Mr Waters had earlier opportunities to contact the court, and there was no evidence that he was unable to attend. The recent involvement of solicitors and his absence abroad did not justify postponement.

1. Court of Appeal (Civil Division): In Melhuish v Waters [2001] EWCA Civ 1174, the renewed application for permission to appeal and the application for an adjournment were dismissed.
2. Court of Appeal (Civil Division): On 12 May 2000, Morritt LJ and Charles J adjourned the permission application so that Mr Waters could obtain and inspect the lower-court tape and allow the respondent to do likewise.
3. Chancery Division, Bristol District Registry: Jacob J made a consent order on 12 November 1999 concerning distribution of the estate and costs. It was drawn up and sealed on 16 November 1999.