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Court of Appeal dismisses appeal against consent order

In Watson v sadiq & Anor [2013] EWCA Civ 822 the appellant appealed against a consent order made during the trial of a property dispute on the basis that (1) it was vitiated by duress and/or the absence of true consent and (2) the judge had improperly intervened during the trial and pressured him to settle the case in a way which offended his Article 6 right to a fair trial under the European Convention on Human Rights.

The judge at first instance had adjourned the trial on several occasions during the four-day hearing, urging the parties to try and reach a settlement.  Following a number of unsuccessful attempts, the parties negotiated a settlement and in the wake of such, a consent order in the Tomlin form was drawn up.

The appellant appealed against the order, arguing that it should be set aside as it had been made under duress and there was an absence of true consent.  The appellant also argued that the judge had intervened improperly, applying pressure on the parties to settle the case through negotiation, contravening the appellants right to a fair trial guaranteed by Article 6 of the Convention.

The decision of the Court of Appeal was that the appropriate route for the Appellant was a new action, rather than an appeal where there could be no witness examination.  As the terms to schedule an order amounted to a contract between the parties, the order should have been challenged in a new action, arguing in accordance with provisions of contract law “ specifically, duress vitiating consent.

On separate issue, the court considered the claim that the appellants right to a fair trial had not been infringed.  It concluded that the trial judge was well within his rights to express the view that the action before him was capable of settlement as an alternative to trial.  However, the judge was expected to take into account the interests of the parties involved to ensure that his allowing the parties time to try and settle the dispute did not disable him from proceeding to deal with the case if compromise were impossible. In the instant case, it was ultimately held that the judges intervention did not offend the principles of fairness enshrined in Article 6 thus; there was no breach of the appellant's Convention rights.

A full copy of the judgment can be found below:-


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