Boundary disputes can be very emotive – just the kind of thing, especially when combined with failures by the legal profession – to lead to pathological litigation, litigation which create problems far bigger than the ones it solves. Though in the case discussed this week, most if not all of the blame for the problems seem to have attached to one of the solicitors, rather than to the parties.

The decision in Scammell v. Dicker [2005] EWCA Civ 405 is about which side of path a 200 metre farm boundary lies. It now has the misfortune to have yielded a second Court of Appeal decision on a procedural point.

In 1989 Mrs. Dicker sought a declaration concerning the boundary of her land, an injunction requiring her neighbours, the Scammells, to remove buildings which she said were on her land, and mesne profits. Not too complicated. But, in the words of Lord Justice Rix,
‘The original proceedings dragged on in a desultory way until 1994. The Scammells' solicitor in those proceedings was a Mr Bourke. He admits to being so negligent in his preparations for trial that he came to advise the Scammells that they had little option but to find a compromise, which they no sooner made than they appear to have regretted.’
The problem was that he had not prepared the witness statements.

The consent order which emerged was difficult to interpret, and the plan of the agreed boundary was inconsistent with the words of the agreement. The biggest problem seems to have been that the consent order meant that the Scammells’ access to their land was blocked, and they had to use an alternative (presumably much longer) route. A year and half later, in 1995, the Scammells, who had been the defendants to the original action, launched a new action funded by the SIF to set aside the consent order on grounds of mistake or uncertainty.

By 1998 Mrs Dicker, the original Plaintiff "reduced to poverty by a decade of litigation", obtained legal aid. It seems terribly unfair on her. The first action was slow, and concluded with a badly drawn agreement, owing to the negligence of the solicitor on the other side. She was then hit with an almost interminable action funded by the SIF designed to undo the damage which her opponent’s negligent solicitor had done.

This second action dragged on for a very long time. Perhaps one reason for the delay was a second dispute over whether the litigation had been settled. This gave rise to the Court of Appeal decision in Scammell v Dicker (2000), the more important of the two decisions. Mrs. Dicker had made a part 36 offer. Hours later she withdrew it. The Court of Appeal decided that there is nothing to stop a party from withdrawing a part 36 offer.(To withdraw a part 36 payment, permission of the court is needed).

In 2002 the Circuit Judge set aside the 1994 consent order, opening the way for the original 1989 action to continue. He set it aside on the basis that it was void for uncertainty. He was upheld on appeal, on the basis that the consent order required some further agreement so could not be a complete agreement. Mrs Dicker obtained leave for a second appeal. Originally leave was granted on a procedural point, apparently on the basis that it may not be open to a part to set aside a consent order after such a long delay. That point fell aside when the Court of Appeal decided that the consent order was in any even not void for uncertainty.

The case is interesting because it appears to be the first time a consent order has been set aside on the basis that it was void for uncertainty. Although that decision did not survive the second appeal to the Court of Appeal, that court did say it was conceivable that it was possible for a consent order to be void for uncertainty. The judgements contain rather little discussion of the authorities on the subject, but they can be found, for example in the footnotes to the Practice and Procedure chapter of Halsbury. Central to several of these cases is the proposition, that a consent order is not the agreement between the parties to settle the litigation. It records that binding agreement. So, if counsel misunderstand a client’s instructions, the compromise can be set aside because it does not reflect a real agreement (Hickman v Berens [1895] 2 Ch 638 (CA); the compromise can be set aside on the strength of counsel’s word to that effect. This is less likely to arise in these days of improved communications, because Counsel will usually have had an opportunity to check a draft with the solicitor, and perhaps with a client. Closer to the present case was Wilding v Sanderson [1897] 2 Ch 534 (CA), where a consent order was set aside for mistake. One party had overlooked the question of whether he would have to pay interest on an account, the other party stayed silent on the point and it was not expressly dealt with in the order. One cannot help thinking that if an ordinary contract had been at stake the court could have construed it, and there are hints that the court did not like the idea of a person being bound by terms of an order whose impact he had not grasped. In any event the Court of Appeal decided that the was no real agreement on which to base a consent order. It decided that a consent order based on a supposed, but illusory, agreement was void.

Distinguishing the agreement to settle on one hand, and the consent order itself on the other is a useful conceptual tool. It is obviously central to several of the decisions on divorce settlements, where an agreement is not enforceable without a court order, though courts are very reluctant to refuse to enforce agreements made between the parties’ legal representatives: the leading cases are of course Edgar v Edgar 1980] 1 WLR 1410, and Xydhias v Xydhias, both in the Court of Appeal. It is also useful in ordinary civil litigation. The fact that the distinction was not discussed in Scammell is probably only because it was not necessary to consider it in this particular case, though had the case been formulated differently it might have become relevant.

The Court of Appeal in Scammell was unimpressed by the argument that the contract was so vague as to be meaningless, in part because the surveyors had managed to interpret it and put up a fence based on it. It is somewhat surprising that the argument succeeded in the lower courts. The first chapter of undergraduate contract textbooks usually says that contracts can be void for uncertainty. Sometimes practitioners advance the argument, knowing that it almost always fails. Counsel in Scammell were alive to this, as is shown by the reference in McCombe J’s judgment on the first appeal in Scammell to Lord Denning’s famous description of the uncertainty argument as a ‘counsel of despair’ in Nea Agrex v Baltic Shipping [1976] 1 QB 933.

A novel point in the present case, and it is worth noting, is in the obiter comments suggesting that the action to set aside the consent order should perhaps have been stayed on ground of delay. In retrospect Mrs. Dicker’s solicitors should have applied for a stay. There is no direct authority which would support such an argument. In Watt v Assets Co. [1905] AC 317 the House of Lords were pretty unhappy about an attempt to set aside a compromise twenty years later, but the express ground for refusing to do so was that it was too late to prove fraud. Rix LJ, referring to the lack of evidence on the point, leaves the question vague. He says:

I agree with Mr Justice McCombe that mere matters of procedure cannot override substantive rights, but I have some sympathy with the submission, as indeed Lord Justice Chadwick appeared to have also, that an element of procedural principle may enter into the question of a claim to set aside the court's own order, even if it was entered by consent, when that order had stood unchallenged for over a year and when the 1995 proceedings had themselves taken nearly seven years to reach trial.

To summarise, the first Scammell v Dicker decision in the Court of Appeal decided that a Part 36 offer can be withdrawn at any time. The second decision, published this April, showed that in principal a court will entertain an action to set aside a consent order for uncertainty. Bear in mind that the order records an agreement, is not an agreement itself, a distinction less likely to be relevant (except in ancillary relief proceedings) now that modern communications allow clients to see draft orders before they are entered. However, putting together the courts’ extreme reluctance to find an agreement void for uncertainty, and the courts' general reluctance to set aside consent orders, the argument is close to hopeless, and it is surprising it got as far as it did. Finally, the Court of Appeal have provided encouragement for any party contemplating resisting an action to set aside a consent order on grounds of delay.

Postscript: it is undecided whether, under CPR, it is still true that the court has no jurisdiction to set aside its own consent order without the issue of new

Dr John Birchall - Professional English, Legal English, and Common Law Training proceedings.