Riordan & Ors v Moon Beevor Solicitors (a firm)

A court may intervene in the implementation of a consent order under the Civil Procedure Rules even where the order records an agreement. The jurisdiction is not confined to cases involving a material change of circumstances. The weight given to the agreement depends on its nature: a substantive settlement ordinarily attracts very great, potentially decisive, weight, whereas an agreed procedural accommodation ordinarily attracts less weight. The court may stay or otherwise refrain from enforcing an executory order where the prevailing circumstances make implementation inappropriate or inequitable. A fully articulated professional-negligence claim concerning the conduct of litigation may justify staying detailed-assessment proceedings, even where the claim is raised late and its merits remain unresolved.

The claimants sought a detailed assessment of their former solicitors’ bill. A consent order set aside an earlier strike-out and required payment of £650,000 by a specified date, subject to an application for an extension; non-payment would otherwise result in dismissal. Before the payment date, the claimants applied to vary, revoke or stay the order pending a proposed professional-negligence claim against the solicitors. The Master stayed the detailed-assessment proceedings. The solicitors appealed, arguing that the claim was not a supervening event or material change in circumstances and that the consent order should be enforced. The central issue was whether, and on what basis, the court could intervene in the implementation of the consent order.

1. Appeal dismissed. The Master had power to stay the detailed-assessment proceedings pending the proposed professional-negligence claim.
2. A consent order does not remove the court’s jurisdiction to intervene in its implementation. Under the Civil Procedure Rules, that jurisdiction is not limited to cases in which there has been a material change of circumstances since the order was agreed. The prior agreement remains relevant to the exercise of discretion.
3. The weight given to the agreement depends on its substance. Where the order embodies the final resolution of a substantive dispute, the agreement will ordinarily receive very great, and perhaps decisive, weight. Where it is no more than a procedural accommodation, the weight remains real and substantial but will ordinarily be less and rarely decisive. This approach was supported by Pannone LLP v Aardvark Digital Ltd [2011] 1 WLR 2275 and confirmed in Safin (Fursecroft) Limited v The Estate of Dr Said Ahmed Said Badrig (Deceased) [2015] EWCA Civ 739.
4. The consent order in this case was properly characterised as a procedural accommodation. The Master was therefore entitled to consider whether it should be implemented in the prevailing circumstances. The fully articulated allegations of professional negligence raised issues capable of affecting the later detailed assessment. It was unnecessary to decide the merits of those allegations or whether the development was truly a supervening event.
5. An executory consent order may also, where appropriate, be left unenforced if enforcement would be inequitable in the circumstances existing when enforcement is sought, as indicated by Thwaite v Thwaite [1982] Fam 1. The indefinite nature of the stay was not challenged on appeal and was not wrong as a case-management decision, although a time limit might have been preferable.

The judgment records an appeal from the Master’s decision to stay detailed-assessment proceedings pending the claimants’ proposed professional-negligence claim. The High Court dismissed the appeal and left the stay in place, subject to the existing liberty-to-apply provision.