Roult v North West Strategic Health Authority

CPR 3.1(7) is not a means by which a judge may reopen a final order, including an order approving a complete or partial settlement. It is a case-management power and cannot convert the trial judge into an appellate court.

A later change in the predicted future consequences of a personal injury does not, without more, destroy the basis of a settlement. Such predictive uncertainty is inherent in the assessment of future loss. The court left open whether an appellate court could ever grant leave to appeal out of time from an approved settlement after a truly exceptional supervening event.

The protected claimant brought a personal injury claim arising from a birth injury. Before trial, the parties reached a partial settlement which assumed that his future care needs would be met in a local-authority group home. The court approved the settlement on 22 January 2007, while leaving future care costs for later quantification on that agreed basis.

After a short and unsuccessful placement in a group home, the claimant sought to claim instead for privately obtained accommodation and dedicated carers. Christopher Clarke J determined as a preliminary issue that the earlier approval prevented that course. The claimant appealed, relying on CPR 3.1(7) and, by analogy, the exceptional family-law jurisdiction in Barder v Caluori [1988] 1 AC 20.

1. Appeal dismissed unanimously. CPR 3.1(7) did not empower the judge to revoke or vary the order approving the partial settlement. Although its language is not confined expressly to procedural orders, it cannot permit a judge to reconsider a final decision in substance as an appeal from himself.

2. The approval order finally disposed of the settled heads of loss. It was not a case-management order merely because other heads remained to be quantified. The settlement followed detailed legal advice, was advantageous to both parties, and expressly proceeded on group-home care as the appropriate basis. CPR 3.1(7) could not be used to undo such a final, court-approved settlement.

3. The court did not decide whether an appellate court could ever permit an out-of-time appeal from an order approving a settlement after erroneous information or a genuinely exceptional supervening event. It held, however, that the alleged failure of the anticipated group-home placement could not satisfy the Barder v Caluori [1988] 1 AC 20 principle. A settlement of future loss necessarily rests on fallible predictions. A later contention that a different form of care is needed is not an unforeseeable event which destroys the settlement’s fundamental basis.

4. Any appeal founded on a dramatic Barder-type event would have to be clearly certain, or very likely, to succeed. It could not be based on assumed disputed facts or the speculative result of a hypothetical future trial. The court found it unnecessary to determine whether the claimant had acted sufficiently promptly.

5. The court declined to rest its conclusion on a proposed distinction between matrimonial ancillary-relief consent orders and settlements of protected parties’ claims.

• Court of Appeal (Civil Division): The claimant’s appeal was dismissed: [2009] EWCA Civ 444.

• Queen’s Bench Division, High Court: Christopher Clarke J determined on 17 November 2008 that the claimant could not pursue future-care damages on a basis inconsistent with the approved partial settlement.

• Queen’s Bench Division, High Court: On 22 January 2007, the court approved the parties’ partial settlement and adjourned the remaining heads of loss for later quantification.