Overturning Consent Orders Part 2
Last week we considered how a settlement agreement might have only been entered into because of fraud or other misconduct by one party. The question then is what the other party does.
There is of course some overlap with the situation after a judgment. The distinguished judge Lord Diplock stated in de Lasala v. de Lasala [1980] A.C. 546, at page 561 that "Where a party to an action seeks to challenge, on the ground that it was obtained by fraud or mistake, a judgment or order that finally disposes of the issues raised between the parties, the only ways of doing it that are open to him are by appeal from the judgment or order to a higher court or by bringing a fresh action to set it aside.".
The appropriate course with a consent order, given that the underlying contract is being attacked, is to bring a new action. If what is complained of by the party seeking to overturn the order is accepted by the court, and in consequence it is appropriate to overturn the order, then the original order will be set aside.
The position in matrimonial cases is a little different. That is because matrimonial cases are one of those circumstances where the court actually goes through approving what is agreed. That is because no doubt it is considered that there are public policy grounds regarding divorce which require the courts to retain some overall control. There are other circumstances in which the courts exercise supervisory jurisdiction. A good illustration is with persons under a disability, perhaps an adult with a mental illness or a child, a person who is not in a position to make decisions for themselves. In such a situation court approval for any proposed deal affecting their entitlements is also required.
In B v Miller & Co, 1996 2 FLR 23, Mr Justice McKinnon at pages 31-2 contrasted the position between matrimonial and non-matrimonial cases when he said: "In ... other proceedings, the general principle is that the legal force and effect of consent orders derives from the contract between the parties, leading to, evidenced by or incorporated in the consent order. In matrimonial proceedings, as we have seen, the legal effect of the consent order is derived after decree absolute from the court order and not from the contract. ". However the judge also pointed out that " I do not believe that this court can close its eyes to the reality of the situation.". Although the court in making an order is required to look at all the circumstances of the case, in general terms although the fact that the court had a supervisory jurisdiction could make a difference, for all practical purposes the matrimonial consent order is likely to be treated in the same way as other consent orders.
Therefore whether a judgment has been given by the court or the parties have reached agreement, and whatever the type of case, there are circumstances where the courts one way or another will reopen the matter if it is thought appropriate to do so. Normally the interests of justice mean that judgments given should not be disturbed. However where there is a viable case that a judgment has been obtained through wrongful conduct such as fraud, equally the interests of justice require that to be remedied.