Consent ordersRe [1966] Ch 209Re [1966] Ch 209Re [2008] 2 FLR 1662
14.52A tribunal may have power to make a consent order incorporating the agreement of the parties. This may be given by statute or by the rules of procedure.
The power to make a consent order
14.53There is no specific enabling power that authorises the making of consent orders. However, the rules of procedure provide for this. The First-tier Tribunal and the Upper Tribunal have power to make a consent order if they consider it appropriate to do so and need not give reasons if they do so. UTR r39 is illustrative:
1See also: GRC Rules r37; HESC Rules r29 (other than mental health cases); Lands Rules r50; PC Rules r35; SEC Rules r32; Tax Rules r34; WPAFC Rules r30. There is no equivalent power in IAC Rules.(1)The Upper Tribunal may, at the request of the parties but only if it considers it appropriate, make a consent order disposing of the proceedings and making such other appropriate provision as the parties have agreed.
(2)Notwithstanding any other provision of these Rules, the Upper Tribunal need not hold a hearing before making an order under paragraph (1), or provide reasons for the order.
14.54The power can only be exercised in order to dispose of the proceedings. It does not authorise a Tomlin order, which merely stays the proceedings on terms set out in the Schedule.
2Community Care North East v Durham County Council [2010] 4 All ER 733 at [25].14.55The designation as an order rather than a decision may be significant, because other provisions of UTR refer only to decisions. It is not clear if a consent order is a decision for other purposes, either at all or in respect of those matters that the tribunal has no jurisdiction to decide. For example: is it a decision for the purposes of an appeal under TCEA ss11 or 13?
Jurisdiction to make a particular order
14.56The power to make a consent order is conferred on the First-tier Tribunal and the Upper Tribunal by the rules of procedure. The rules may not create a jurisdiction which does not otherwise exist.
3Diplock LJ in Garthwaite v Garthwaite [1964] P 356 at 395.14.57Accordingly, a tribunal has no jurisdiction to make a consent order that is, in its terms, outside its jurisdiction. For example: a consent order by a tribunal making a declaration of incompatibility under the Human Rights Act 1998 would be outside its jurisdiction.
14.58Likewise, a tribunal should not make a consent order that it would not be authorised to make on the facts and circumstances of the case. This is subject to provision to the contrary, as legislation may allow a tribunal to make an order even if it would not otherwise do so. It may even require it to do so: section 13(3) of the Social Security Act 1998 and section 23A(3) of the Child Support Act 1991 require a First-tier Tribunal to set aside its decision if the parties express the view that it was erroneous in law, even if it does not agree.
14.59In theory, a tribunal should not make an order that the facts and circumstances do not allow. In practice, however, without the knowledge of the facts or assumptions on which the parties have reached their agreement, the tribunal may not know whether the decision was one that it was permissible to make. Nevertheless, an appeal may only be allowed by consent if there is ‘an error of law, without which there would be no jurisdiction’.
4AL (Albania) v Secretary of State for the Home Department [2012] 1 WLR 2898 at [11]. And in judicial review proceedings, a decision may only be quashed by consent if the Upper Tribunal is ‘in a position to conclude that there are good grounds on the merits for quashing the decision in question.’
5R (G and H) v Upper Tribunal and Secretary of State for the Home Department [2016] EWHC 239 (Admin) at [205]-[213]. The judge said it was not appropriate to consent to an order on the ground that it was ‘the most practical resolution’ or ‘on grounds of convenience only’.14.60Otherwise, there are two justifications for a consent order containing matters that the tribunal has no jurisdiction to decide. First, the matters may be included as undertakings. Second, they may record a concession that a decision-maker may make outside the context of the proceedings, such as agreeing to undertake a reconsideration. However, the First-tier Tribunal does not have power to enforce the undertaking or punish a party for failing to comply. It is not clear whether the Upper Tribunal may do so under TCEA s25.
14.61If the consent order is to be effective, it must provide for the disposal or future conduct of the proceedings. If it contains a decision that is within the tribunal’s jurisdiction that disposes of the proceedings, that will be sufficient. Otherwise, the parties must agree to the proceedings being stayed, withdrawn or dismissed.
Consent orders based on contract
14.62An order may be described as made ‘by consent’. Those words are ambiguous. The two meanings and their significance were explained by Lord Denning MR in
Siebe Gorman and Co Ltd v Pneupac Ltd:
6[1982] 1 WLR 185.There are two meanings to the words ‘by consent’ … One meaning is this: the words ‘by consent’ may evidence a real contract between the parties. In such a case the court will only interfere with such an order on the same grounds as it would with any other contract. The other meaning is this: the words ‘by consent’ may mean ‘the parties hereto not objecting’. In such a case there is no real contract between the parties. The order can be altered or varied by the court in the same circumstances as any other order that is made by the court without the consent of the parties.
7[1982] 1 WLR 185 at 189.The former is the technical meaning.
8Lord Greene MR in Chandless-Chandless v Nicholson [1942] 2 KB 321 at 324.14.63Until a contractual compromise is given effect to in a consent order, its enforcement is a matter of contract. Thereafter, the contract is replaced by the consent order. It is that order that must be enforced or challenged, not the contract that it embodied. In
de Lasala v de Lasala,
9[1980] AC 546. the Privy Council set out the following principles:
•once a court order has been made, it determines the legal effect of the parties’ agreement;
10[1980] AC 546 at 560. •if the order is not complied with, the proper course is to seek to enforce that order.
11[1980] AC 546 at 560. The order may be enforceable by the tribunal itself. This is rare; most tribunals do not have power to enforce their own orders. Or the order may be enforceable as if it were a court order. This is the position under TCEA. Section 27 provides that sums payable pursuant to a decision are recoverable as if they were payable under a court order. Or the order may have a liberty to apply provision. This will allow the case to be brought back before the tribunal, although this cannot give the tribunal jurisdiction to enforce the order;
•the proper ways to challenge an order are by appeal or by an action to set it aside.
12[1980] AC 546 at 561. On the practicalities, see Ormrod LJ in Robinson v Robinson [1982] 1 WLR 786. 14.64Once made, a consent order is binding between the parties and is of no effect on anyone else.
13R(FC) 1/97 at [28].Consent orders not based on contract
14.65If the parties are not able to make their agreement the subject of an enforceable contract, it may nonetheless have effect, for example under the law of legitimate expectation.
Undertakings
14.66These are appropriate for matters over which the court or tribunal has no jurisdiction.
14Lord Brandon in Jenkins v Livesey [1985] AC 424 at 444. They do not usually form part of the order, but they are binding as if they were, even if they are outside the tribunal’s jurisdiction
15B v Home Office [2012] 4 All ER 276 at [133] and [136]. Their enforcement is a matter of punishment, not compensation. As Buckley J explained in
Re Hudson:
16[1966] Ch 209.An undertaking, however, is not an order. It is true that an undertaking to do or to abstain from doing something other than payment of money may have the same effect as a mandatory or a restrictive injunction; for a breach of such an undertaking, like a breach of an injunction, exposes the culprit to the risk of imprisonment or possibly of sequestration or a fine. These are penal sanctions aimed at enforcing compliance with either a promise made to the court or an order of the court, as the case may be. They are not remedies the purpose of which is to compensate some other party for damage he has suffered as the result of the breach or for recovering any property or enforcing any right of his.
17[1966] Ch 209 at 213–214.14.67This is so even if the undertaking is a condition precedent to the oper-ation of the consent order.
18Thwaite v Thwaite [1982] Fam 1. However, the undertaking may form part of a contract between the parties, collateral to the terms of the order.
19Buckley J in Re Hudson [1966] Ch 209 at 213–214; Independiente Ltd v Music Trading On-Line (HK) Ltd [2007] 4 All ER 736. And for some limited purposes it may be equivalent to an order.
20Gandolfo v Gandolfo [1981] QB 359; Symmons v Symmons [1993] 1 FLR 317.14.68Like a court, the Upper Tribunal has residual discretion in exceptional circumstances to release a party from an undertaking.
21B v Home Office [2012] 4 All ER 276 at [133] n67.Appropriate
14.69It is the making of the order, rather than the order itself, that has to be appropriate. However, the contents of the order will be relevant to whether it is appropriate to make it.
14.70‘Appropriate’ is not defined. What is appropriate must depend on the circumstances of the particular case.
22For a discussion of the ‘good and sufficient reasons’ test applied by the Court of Appeal, see Rochdale Metropolitan Borough Council v KW (No 2) [2016] 1 WLR 198 at [26]. The Court said it would accept a consent order if it was based on apparently competent legal advice and the parties had given plausible reasons for the decision under appeal being wrong. The judge whose decision is set aside has no entitlement to a reasoned decision on the merits; the interests of the parties and the public interest are all that matters.
23Rochdale Metropolitan Borough Council v KW (No 2) [2016] 1 WLR 198 at [27].14.71One relevant factor is the distinction drawn by the Bowman Committee in its Review of the Court of Appeal (Civil Division) of September 1997, between the public and private purposes of an appeal:
There is a private and a public purpose of appeals in civil cases.
The private purpose is to correct an error, unfairness or wrong exercise of discretion which has led to an unjust result.
The public purpose is to ensure public confidence in the administration of justice and, in appropriate cases, to:
•clarify and develop the law, practice and procedure; and
•help maintain the standards of first instance courts and tribunals.
24In chapter 1. The making of a consent order is a private purpose and is not appropriate as a means of fulfilling the public purpose. The features of the case will determine whether there is a public element in the case or in the order that the parties have agreed. If there is, that is an indication that it may not be appropriate to make the order.
Challenging a consent order
14.72The rules of procedure contain powers to correct, set aside, review and give permission to appeal against a ‘decision’. These apply to the extent that the consent order is, or embodies, a decision.
14.73Apart from these provisions, the courts have laid down some general principles on the circumstances in which a consent order may be challenged.
14.74A consent order may be challenged on the grounds of fraud or mistake.
25de Lasala v de Lasala [1980] AC 546 at 561. If the order could only be made upon enquiry by the tribunal into all the circumstances, it can be set aside for lack of full and frank disclosure by the parties,
26Lord Brandon in Jenkins v Livesey [1985] AC 424 at 438, 440 and 442. provided that a substantially different order would have made if the full circumstances had been known.
27[1985] AC 424 per Lord Brandon at 445.14.75It is theoretically possible for a consent order to be void for uncertainty. However, in practice the courts will overcome difficulties of interpretation in working out or clarifying an order.
28Scammell v Dicker [2005] 3 All ER 838.14.76In
Eden v Humphries & Glasgow Ltd,
29[1981] ICR 183. the Employment Appeal Tribunal held that a consent order based on a contract could only be set aside if the underlying contract were also set aside. As the Tribunal had no power over the parties’ contract, it could not set aside the order withdrawing the appeal. This is difficult to reconcile with the principle that the consent order replaces the contract.
30de Lasala v de Lasala [1980] AC 546.Authority to agree to a consent order
14.77A representative may have actual or apparent authority to agree to a consent order. Solicitors have apparent authority. Accordingly, if a representative with apparent authority agrees to a consent order, it will bind the party even if the representative had no actual authority to do so.
31Times Newspapers Ltd v Fitt [1981] ICR 637.Costs
14.78If the consent order is made in a jurisdiction in which costs may be awarded, the usual approach would be an order that no costs be paid.
32Re F (Family Proceedings: Costs) [2008] 2 FLR 1662 at [12].Contempt
14.79If a consent order is made on the basis of false statements by one of the parties, that party may be guilty of contempt.
33Kirk v Walton [2009] 1 All ER 257.