Revill v Damiani

A compromise made on behalf of a protected party is not binding until approved by the court. Either party may withdraw before approval. That rule in Civil Procedure Rules 1998 CPR 21.10 pursues legitimate aims, including protecting protected parties from inadequate settlements and enabling defendants to obtain a valid discharge.

The difference in treatment between protected and other litigants is justified and proportionate under articles 6 and 14 of the ECHR. The rule-making body was entitled to choose this scheme rather than the approach used in family proceedings. A damages claim does not engage article 1 of the First Protocol merely because its settlement remains subject to court approval.

The claimant, a protected party lacking capacity after a serious road traffic accident, agreed a damages settlement with the defendant at a joint settlement meeting. The agreement provided for recalculation if the statutory discount rate changed before the approval hearing.

After the Lord Chancellor reduced the discount rate, the claimant’s future-loss calculations increased substantially. The defendant withdrew before court approval. The claimant sought a declaration that the defendant remained bound and argued that CPR 21.10 unjustifiably discriminated against protected parties under article 14 read with article 6 or article 1 of the First Protocol.

The preliminary issue was whether the defendant was entitled to resile from the compromise and whether CPR 21.10 was compatible with the Convention rights.

1. The defendant was entitled to withdraw. Under CPR 21.10, a settlement or compromise made on behalf of a protected party is invalid without court approval. The principles in Dietz v Lennig Chemicals Limited and Drinkall v Whitwood meant that either party could repudiate the compromise before approval.
2. Article 14 and article 6. The claimant’s status as a protected party was an “other status”. Protected and unprotected litigants were in relevantly different positions for settlement purposes, and the difference in treatment pursued legitimate aims: protecting the protected party, securing a valid discharge, safeguarding recovered money and protecting dependants’ interests.
3. Proportionality. CPR 21.10 had a reasonable relationship of proportionality to those aims. The rule-making committee was entitled to retain the long-established civil-proceedings approach, under which either party could withdraw before approval, rather than adopt the family-proceedings approach. The civil approach provided certainty, maintained a fair balance and permitted concerns about a settlement to be addressed before a further compromise was made. The wider CPR case-management provisions also supported the good administration of justice.
4. Article 1 of the First Protocol. The claim for damages remained a chose in action whether or not it had been converted into an entitlement under the compromise. The settlement rule therefore did not affect peaceful enjoyment of possessions. In any event, the proportionality conclusion would have been the same.
5. The application for a declaration that the defendant was bound by the compromise was dismissed. No declaration of incompatibility was made. The court directed that the quantum trial be listed, although the parties subsequently reached a further compromise.

This was a first-instance preliminary issue in the High Court. The judgment records that proceedings had been issued in May 2016 and that liability had been admitted, leaving quantum to be determined.