DMR v IX & Ors

Delay in appealing a final consent order may be excused where a supervening event occurs within the appeal period, the party promptly challenges the order, and subsequent steps reasonably investigate that event. A final consent order is not immune from appellate challenge.

Where a claimant dies shortly after approval of a lump-sum settlement, permission to appeal may be granted if the circumstances raise an important and unresolved question about whether the death destroyed the basis of the order. The permission stage does not require a conclusion that the appeal is certain or very likely to succeed.

The claimant suffered catastrophic injuries in a motorcycle accident. Liability was compromised at 75 per cent, and the parties later agreed a lump-sum settlement of future losses. The High Court approved the settlement by final consent order on 3 October 2018.

The claimant died unexpectedly on 13 October 2018, before payment was due. The defendants initially sought a stay and disclosure of medical records. After investigating the death, they filed a notice of appeal on 18 April 2019 and sought an extension of time and permission to appeal. The central issue was whether the death might have destroyed the basis of the approved settlement and whether the proposed appeal should proceed.

1. Extension of time. The delay of more than five months in issuing the notice of appeal was significant and serious, but it was excusable. The supervening death occurred within the appeal period; the defendants promptly applied for a stay; the parties then proceeded by consent to obtain letters of administration, investigate the medical circumstances and disclose records; and the claimant suffered no prejudice. Applying the three-stage approach in Denton v White [2014] EWCA Civ 906, it would have been unjust and unduly technical to refuse an extension.
2. Permission to appeal. There is no jurisdictional bar to challenging a final consent order, although the court is slow to interfere with one. The proposed appeal raised an important point requiring full argument: whether a supervening death occurring very shortly after approval of a settlement could destroy the basis on which the order was made. The question was not answered by Roult v North West Strategic Health Authority [2009] EWCA Civ 444, which had expressly left the broader issue open.
3. The older authorities Murphy [1969], Mulholland [1971] and McCann [1973] contained potentially relevant statements supporting a flexible approach to subsequent death and fresh evidence, although they arose under an earlier procedural regime and required close analysis. The authorities did not justify deciding the substantive appeal at the permission stage.
4. The court left open whether a case of this kind must satisfy the stringent formulation in Roult, namely that success be certain or very likely, or whether the ordinary test for permission to appeal—realistic arguability—applied. Even on the stricter view, the uncertainty in the law supplied another compelling reason to grant permission. The court did not thereby indicate that the appeal was certain or very likely to succeed.
5. Extension of time and permission to appeal were granted. The stay was to continue in the meantime. Costs were in the appeal. The appeal was later compromised by consent on 4 June 2020.

• Court of Appeal (Civil Division): on 14 January 2020, extension of time and permission to appeal were granted against the High Court’s final consent order dated 3 October 2018.
• High Court of Justice, Leeds District Registry: settlement approved and final consent order made on 3 October 2018.
• Subsequent disposal: by consent order dated 4 June 2020, the appeal was compromised on agreed terms.