Ministry of Defence v Blythe

A consent order for provisional damages must be construed according to its terms. A time limit for applying for further damages does not necessarily create an irrevocable contractual limitation, particularly where the order also gives liberty to apply for an extension without imposing a deadline.

For proceedings commenced under the former Rules of the Supreme Court, a later procedural step may be governed by the Civil Procedure Rules. Where those rules do not provide otherwise, CPR 3.1.2(a) permits the court to extend time for compliance with a court order, even after expiry. The exercise of that discretion is subject to ordinary appellate restraint.

The claimant had received a 1990 consent order awarding provisional damages for pleural plaques. The order permitted an application for further damages within 20 years if specified conditions developed, and also gave liberty to apply for an extension of that period.

After the 20-year period expired, the claimant applied for an extension. Master Eastman granted the application. The Ministry of Defence appealed, arguing that the order embodied a binding contractual compromise which prevented any extension after expiry, and that the Civil Procedure Rules could not authorise variation of the order.

The appeal concerned the proper construction of the order, the applicability of the former and current procedural rules, and whether the Master had exercised his discretion lawfully.

1. Appeal dismissed. The order did not establish the alleged 20-year finality. Its wording contemplated both a time limit for applying for further damages and an application to extend that period, without limiting the time for seeking an extension.

2. The substantive agreement was the immediate award of damages and the exclusion of specified conditions from its assessment. The second paragraph was principally a procedural accommodation governing the continuing cause of action. It was therefore subject to the court’s case-management powers.

3. The proceedings had commenced before 26 April 1999, but the application was a new step in existing proceedings. Under CPR Part 51 PD A, para 11, it was governed by the Civil Procedure Rules. Unlike the former rule, RSC Ord 37, r 8, CPR Part 4.1 did not preclude an application for an extension after expiry. Accordingly, CPR 3.1.2(a) applied and empowered the court to extend time for compliance with any court order after the time had expired.

4. The Master had relevant grounds for exercising the discretion. The order was conventional when made, the claimant would otherwise be left without a remedy for an admitted liability, and there was no suggestion that the Master relied on irrelevant matters or reached a perverse conclusion.

5. Roult v North West Strategic Health Authority and Tibbles v SIG Plc were distinguishable. The Master had not set aside the substantive order or retrospectively varied an allocation decision. The judge would have exercised the discretion in the same way.

• High Court (Queen’s Bench Division): appeal from Master Eastman dismissed. The Master’s order extending time was upheld.
• Permission to appeal: permission was refused by Males J and subsequently granted by Silber J at an oral hearing.