Lloyds TSB Bank Plc v Buswell & Anor

A court asked to make a consent order generally has jurisdiction to do so where the order falls within its jurisdiction. The contractual terms scheduled to the order represent the parties’ compromise and are not for the court to approve, scrutinise or alter. A party who freely enters an arm’s-length commercial compromise cannot resile merely because it later appears disadvantageous, because legal advice was not obtained, or because the agreed timetable is tight but workable. The agreement may be challenged only on established grounds such as misrepresentation, duress or undue influence. The approach in Noel v Becker and Another [1971] 1 WLR 355 remained applicable.

Lloyds TSB Bank Plc brought long-standing possession proceedings concerning a legal charge over the defendants’ property. Shortly before the scheduled trial, the bank, Mr and Mrs Buswell, and their representatives negotiated a written compromise. The agreed order provided for possession, suspended on terms involving valuation, payment or sale of the property, and dismissed the remaining claims and counterclaims.

Mr Buswell later sought to withdraw from the agreement, alleging lack of legal advice, misrepresentation, undue influence, pressure, unfair valuation provisions, an inappropriate timetable and procedural defects concerning arrangements between himself and his wife. His Honour Judge Coningsby QC rejected those objections and made the consent order. The central issue before the Court of Appeal was whether the judge had jurisdiction to make the order and whether Mr Buswell had shown a proper basis for setting aside the compromise.

1. Application dismissed. The consent order was within the jurisdiction of the county court. The judge was entitled, and required, to give effect to the parties’ agreement.
2. The terms scheduled to the consent order recorded the parties’ private contract. Consistently with Noel v Becker and Another [1971] 1 WLR 355, the court was not directly concerned to approve or disapprove those terms, provided that the order itself was within jurisdiction. The court had no residual power to rewrite the agreed valuation mechanism.
3. The compromise was binding. It had been reached in an arm’s-length negotiation between free and independent parties. There was no requirement that each party obtain legal advice before signing. The absence of such advice did not itself invalidate the agreement.
4. The alleged misrepresentations did not justify setting aside the compromise. The agreement itself contemplated remortgaging, while any possible extension of time was not something the solicitor could represent on the bank’s behalf. The complaints of undue influence and improper duress were also unsupported. Commercial pressure and an agreement that later appeared disadvantageous were insufficient.
5. The absence of a Part 20 claim between husband and wife was immaterial because the court’s order did not adjudicate their respective interests. The timetable was tight but not impossible, and therefore supplied no basis for repudiation.
6. Lord Justice Keene agreed with the dismissal. The formal order was that the application for permission to appeal be dismissed.

• Court of Appeal (Civil Division): application for permission to appeal dismissed. The court upheld the consent order made by the county court.
• Croydon County Court: His Honour Judge Coningsby QC made a consent order on 28 November 2001, including a suspended possession order and dismissal of the remaining claims and counterclaims.