Scammell & Ors v Dicker

An agreement fails for uncertainty only in the rare case where it is legally or practically impossible to give the parties’ words any sensible content. Difficulty in interpretation, factual application or execution does not suffice.

A court should seek to preserve a bargain where the parties have expressed an ascertainable intention to contract and the terms can be rendered certain. The need for further agreement threatens validity only where essential terms remain unsettled. These principles apply with particular force to a formal consent order compromising litigation, because the court can assist with its interpretation and implementation.

The parties owned adjoining properties and disputed the position of their boundary. Proceedings begun by Mrs Dicker in 1989 were compromised by a consent order in 1994. The order declared the boundary by reference to specified wording and an annexed plan.

The Scammells subsequently sought to set aside the consent order for uncertainty or mistake. HHJ Rudd rejected the mistake case but declared the order void for uncertainty. McCombe J dismissed Mrs Dicker’s appeal in [2003] EHWC 1601 QB.

Mrs Dicker appealed. The central issue was whether difficulties in placing the agreed boundary precisely on the ground rendered the consent order void for uncertainty.

1. Appeal allowed. The consent order was sufficiently certain and the claim to set it aside failed. Ward LJ agreed with the judgment of Rix LJ, so the decision was unanimous.

2. A disagreement about the meaning or effect of an agreement is not equivalent to legal uncertainty. Disputes about contractual meaning, application and underlying facts are routinely resolved by courts or arbitrators. An agreement fails only where it is legally or practically impossible to give it any sensible content, which occurs very rarely.

3. The difficulties identified below did not establish impossibility. The southern boundary could be plotted from the plan if the soil line proved unhelpful. The western edge of the existing bank could be delineated despite practical difficulty. Any apparent inconsistency between the wording and the plan was a matter of interpretation. Courts should seek to preserve bargains, especially where the parties have acted upon them.

4. The problem created by the telegraph pole was a minor matter of detail. Three objectively ascertainable solutions were available. Rix LJ preferred a stepped boundary beginning from the centre line of the hedge because that solution satisfied the wording and plan while leaving the pole on the intended side. Any of the solutions would have given practical effect to the settlement. The applicable principle was that an agreement is certain where it can be rendered certain.

5. The order contained neither terms requiring further agreement nor an agreement to agree. Further agreement for implementation does not generally invalidate a contract. Uncertainty arises from that circumstance only where agreement on essential terms is absent. The detailed wording, plan, formal court approval and subsequent conduct demonstrated an ascertainable and determinate intention and enabled the order to be given practical meaning.

6. It was unnecessary to decide whether the proceedings should instead have been stayed under the Civil Procedure Rules 1998. Procedural rules cannot override substantive rights, although procedural principle may bear upon a delayed attempt to set aside a court order entered by consent.

1. Court of Appeal (Civil Division): Allowed Mrs Dicker’s appeal and held that the 1994 consent order was not void for uncertainty: [2005] EWCA Civ 405.

2. High Court, Queen’s Bench Division: McCombe J dismissed Mrs Dicker’s appeal from HHJ Rudd and upheld the declaration that the consent order was void for uncertainty: [2003] EHWC 1601 QB.

3. County Court: HHJ Rudd rejected the challenge based on mistake but declared the 1994 consent order void for uncertainty.