Michael Anthony Thomas v Secretary of State for the Home Department

For the purposes of Civil Procedure Rules 1998 r 36.17, a sealed consent order may amount to judgment even though it records a settlement and does not use the word judgment. The court must examine the substance and effect of the order. Where it finally requires payment of a specified sum in settlement of the claim, and is enforceable in the same way as an award of damages after trial, it may engage the Part 36 costs consequences. The absence of an independently adjudicated judgment is not decisive. The court must still consider whether it would be unjust for the usual consequences to apply.

The claimant brought a claim arising from his unlawful detention. Liability had been determined in the claimant’s favour, but quantum was subsequently agreed at £16,000. A sealed consent order required the defendant to pay that sum, with the issue of costs reserved for determination on written submissions.

Before the costs decision, the claimant had made four Part 36 offers, each below £16,000. The issue was whether the consent order constituted judgment for the purposes of Civil Procedure Rules 1998 r 36.17, so that the usual costs consequences applied.

1. Consent order treated as judgment. The court accepted that the absence of the word judgment from the consent order was immaterial. Its substance and effect were decisive. The order finally required payment of £16,000 in full and final settlement, and an order following a trial could have been drafted in identical terms.
2. The reasoning in Vanden Recycling Ltd v Kras Recycling BV [2017] EWCA Civ 354 applied. There, a consent order requiring payment of a specified sum was treated as having the same effect as an order made following judgment. The present order similarly gave final and enforceable effect to the claimant’s damages claim.
3. The court was fortified by the White Book commentary to Civil Procedure Rules 1998 r 40, which stated that the rules themselves provided no basis for distinguishing between judgment and order.
4. Accordingly, the consent order amounted to entry of judgment in favour of the claimant for £16,000. The costs consequences under r 36.17 were engaged, notwithstanding that the sum had been agreed rather than determined after a contested trial.
5. There was no argument, and no reasonable basis, that applying the usual consequences would be unjust. Those consequences therefore ran from 8 November 2021, being 21 days after the claimant’s first Part 36 offer of £15,000.
6. The proposed costs order was adopted with two modifications: interest on costs was set at 7%, and the claimant was ordered to bear the costs of the 9 May 2025 application to adduce a witness statement.

First-instance costs decision. The judgment records an earlier determination of liability on 22 November 2024 and a subsequent consent order dated 23 July 2025, but gives no citation for either decision.