Consent orders in civil litigation

The role of consent orders 

A consent order can be used to record an agreement reached between the parties in respect of certain interim matters or it may also be used for the same purpose when a full settlement compromise is reached.

The order is based on a contract between the parties. Due to that contractual nature, for the order to exist and be enforceable, all elements of contractual agreement need to be present at the time when the agreement was formed.

Alternatively, a consent order can be used to act as an estoppel. Therefore, it could be employed in such a way to prevent a party from alleging matters against the other which have been compromised by the agreement.

Variation or setting aside of the orders 

In principle, before the order has been drawn up, it is possible to apply back to court to have it set aside or varied. However, once the order has been prepared the party seeking the order to be set aside must have good grounds to show that misrepresentation, mistake or any other ground to set aside the contract is present. Following the consent order being perfected, the court has no power to vary it.

Whenever a party wishes to challenge a judgment or order that has the effect of finally disposing of the issues between the parties, the only available ways to achieve that result are to bring an appeal from judgment or order or to bring fresh proceedings to set it aside. 

Tomlin orders

In certain specific agreements, the compromise can be embodied in what are known as Tomlin orders. Those are used where complex terms of settlement are agreed, or terms are agreed which extend beyond the boundaries of the action. Alternatively, those could be employed where the parties seek to avoid publicity of the terms agreed.

Where the compromise has been reached and it is proposed that the action be stayed on the agreed terms to be scheduled to a consent order, the minutes should be drawn up. Those should include the following or else to that effect: 

“And, the claimant and the defendant having agreed to the terms set out in the annexed schedule, it is ordered that all further proceedings in this action be stayed, except for the purpose of carrying such terms into effect.”

Entering consent orders 

Administrative consent orders 

Certain consent orders can be entered by a purely administrative process without the need for obtaining the approval of a judge. This is provided for by the Civil Procedure Rules, in particular rule 40.6. However, the process cannot be used if one of the parties is a litigant in person (rule 40.6(2)(b)). The categories of orders which are covered by those provisions include:

  • Judgment orders for the payment of money;

  • Judgment orders for the delivery up of goods (other than specific delivery);

  • Orders setting aside default judgments;

  • Orders to dismiss part or the whole of the proceedings;

  • Orders for stays on agreed terms which dispose of proceedings, including Tomlin orders;

  • Orders for discharge of liability of any party; and

  • Orders for the payment, waiver or assessment of cost.

The order itself has to be drawn up in all of the agreed terms and bear the words ‘By Consent.’ Further, it is necessary to be signed by solicitor or counsel for each party. In cases where terms are annexed in a schedule, provisions regarding the payment of money out of court should be contained in the body of the order rather than in the schedule.

Consent orders approved by the court 

Most situations where an order includes provision going beyond the type of orders listed above, or if one of the parties is a litigant in person, in order for the consent order to be effective, it will need to be approved by the court. Often, the orders are considered before a District Judge or a Master.

The order is to be drawn up in the same manner as in the case of administrative consent orders.

The court on considering the order is not bound to accept it but retains ultimate control. However, the judge will always take into account the terms agreed between the parties in whatever order he decides to make. 

In cases where the court’s approval must be sought, either one of the parties may make the application for approval. The application may subsequently be considered on a hearing or dealt with without the conduct of such. 

Enforcement

With regards to enforcement, as a general rule if a party fails to comply with any of the conditions agreed in the consent order, the innocent party can seek to enforce the order in the same manner as any other court order.