No power to vary settlement approved by court

Mr Stephen Grime QC for the claimant; Mr David Westcott QC for the defendants.

LORD JUSTICE HUGHES said that the claimant’s action arose from a birth injury in which he was starved of oxygen leading to cerebral palsy. He was now 21 and functioned roughly as a four year old. He had lived all his life with his parents.

His action was begun in the summer of 2005 when he was coming up to 18. Liability had already been conceded. The judge was presented with a draft schedule to the order in two parts. The first included accommodation which was valued at nil, because it was accepted that a local authority group home would be the best provision for the claimant’s care. The second part included costs of future care.

However, in June 2008, the claimant served a revised schedule of his outstanding claim. It sought damages for future care in privately obtained accommodation with privately engaged dedicated carers, arguing that the local authority group home had not worked out. The judge held that it was not open to the claimant to pursue such a claim in the light of the previous agreement.

It was argued on behalf of the claimant that the power in rule 3.1 of the Civil Procedure Rules giving the court power to vary an order could be exercised where the original order had been followed by an unforeseen event which destroyed the assumption on which the settlement was made.

The order was a final disposal of many of the issues between the parties. It gave approval to a settlement agreed between the parties which was reached nearly 19 years after the original cause of action arose.

It was not in the interests of vulnerable parties that their cases should forced in to the trauma, expense and uncertainty of a trial. When settlement was not only achieved but approved by the court, rule 3.1(7) could not be employed to undo the order.

Lady Justice Smith and Lord Justice Carnwath agreed.

Solicitors: Potter Rees, Manchester; Hempsons, Manchester.