Overturning Consent Orders Part 1
In the last few weeks we have been looking at the circumstances in which a judgment can be overturned as a result of finding fresh evidence. We have looked at the tests which govern when and in what circumstances fresh evidence could be brought forward for this purpose. However this has all been in the context of court decisions made where both parties have been in dispute and ultimately the judge has had to resolve matters after a hearing.
In practice not every case goes to a trial. Indeed far more cases are compromised than are fought out in court. These are referred to as cases which "settle". Each party will take a view on the strength of the evidence and the documents (obviously in consultation with their legal advisers) and in consequence the parties may do a deal.
The problem can arise in a case which settles just as in the case which fights. However the principle of what happens is rather different. Imagine that you have a builder doing works at your house. He makes a mess of the work, or you were otherwise unhappy with what he has done. Proceedings are issued. Suppose in one instance that he makes an offer of settlement of £10,000. He also swears a statement saying that he has financial difficulties, that this represents all of the available cash that he has, and that if proceedings are pursued any money he has is likely to go on legal costs and the claimant will only succeed in making the builder bankrupt but will not actually recover any cash. Consequently the parties settle the case. However a year later the builder wins the lottery. The fact that he now has money is irrelevant. However, if instead it transpired that he had other assets and had lied about his financial position that would have been a deceitful statement which would have been designed to get the other party to settle on different terms. Another illustration of a deceitful statement would be if the builder said that he had used proper tradesmen and produced forged receipts (to try and justify the level of his charges and hence affect any settlement).
In non-matrimonial cases consent orders are based on the underlying contract said to exist between the parties. In other words, the settlement is a contract like any other (a contract to buy shares or whatever). Therefore the consent order will be treated in the same way as a contract. There are various circumstances in which a contract can be set aside. One of those grounds is a material misrepresentation. This is a false statement of fact (which need not have been deliberately false although obviously the position is much more severe if this was deliberate) which was intended to and did affect the other party in reaching a deal. If there is a deliberate deception this amounts to fraud and that would be the classic instance in which a court would be prepared to interfere. Therefore the evidence which would be adduced in those circumstances would be that showing the fraud. Naturally the relevant evidence would be the material which shows that whatever representation was made was in fact false, particularly if it was false to the knowledge of the party making it.
Next week we shall see in practice how one goes about setting aside, and also consider the position in matrimonial cases.