QUEEN’S BENCH DIVISION
Strand, London WC2A 2LL | ||
B e f o r e :
____________________
THE QUEEN | ||
Claimant | ||
and | ||
SECRETARY OF STATE FOR THE HOME DEPARTMENT | Defendant | |
and | ||
PAROLE BOARD | Interested party |
____________________
Miss Dinah Rose (instructed by the Treasury
Solicitor) appeared for the Defendant.
Crown Copyright ©
The history
“1. All further proceedings herein be stayed save for the purpose of giving effect to the terms of the attached Schedule, for which purpose there shall be liberty to apply;”
“The Defendant shall pay to the Claimant the sum of £20,000 in full and final settlement of the Claimant’s claims in Case Number CO/3159/2001, and any other claim the Claimant may have arising out of his detention between 1 November 2000 and 18 June 2002, including any claim under the law of England and Wales, or pursuant to the European Convention on Human Rights, save any claim the existence of which the Claimant could not reasonably have known about at the date of this agreement”.
Statutory provisions relating to public funding
“(1) Subject to the following paragraphs of this regulation … all money payable to or recovered by a client in connection with a dispute by way of damages, costs or otherwise, whether or not proceedings were begun, and whether under an order of the court or an agreement or otherwise, shall be paid to the client’s solicitor, and only the client’s solicitor shall be capable of giving a good discharge for that money.
…
(3) Where the client’s solicitor has reason to believe that an attempt may be made to circumvent the provisions of paragraph (1), he shall inform the Commission immediately.
“(1) The client’s solicitor shall forthwith:
(a) inform the Regional Director [sc. of the Commission] of any money or other property recovered or preserved, and send him a copy of the order or agreement by virtue of which the property was recovered or preserved;
(b) subject to the following paragraphs of this regulation, pay to the Commission all money or other property received by him under regulation 18.
…
(4) The Regional Director may direct the client’s solicitor to:
(a) pay to the Commission under paragraph 1(b) only such sums as, in the Regional Director’s opinion, should be retained by the Commission in order to safeguard its interests; and
(b) pay any other money to the client”.
Implied term
Setting aside or variation of the Consent Order
“My Lords, the result of the two lines of authority to which I have referred appears to me to be this. A court may properly exercise its discretion to grant leave to appeal out of time from an order for financial provision or property transfer made after a divorce on the ground of new events, provided that certain conditions are satisfied. The first condition is that new events have occurred since the making of the order which invalidate the basis, or fundamental assumption, upon which the order was made, so that, if leave to appeal out of time were to be given, the appeal would be certain, or very likely, to succeed. The second condition is that the new events should have occurred within a relatively short time of the order having been made. While the length of time cannot be laid down precisely, I should regard it as extremely unlikely that it could be as much as a year, and that in most cases it will be no more than a few months. The third condition is that the application for leave to appeal out of time should be made reasonably promptly in the circumstances of the case. To these three conditions, which can be seen from the authorities as requiring to be satisfied, I would add a fourth, which it does not appear has needed to be considered so far, but which it may be necessary to consider in future cases. That fourth condition is that the grant of leave to appeal out of time should not prejudice third parties who have acquired, in good faith and for valuable consideration, interests in property which is the subject matter of the relevant order.”
“28. I do not accept the argument advanced by [Counsel] that only a fundamental change in the factual matrix can constitute a supervening event…”.
…
47. Since Barder’s case [1988] AC 20 the jurisprudence has developed, and I am satisfied that although Barder’s case did not specifically refer to foreseeability it is implicit in the circumstances of that case that the death of the mother and children was not reasonably foreseeable, and in effect came as a bolt from the blue. Later cases have developed this aspect. ...”.
48. From the reported cases I find that the following propositions arise. Firstly the new event must be a complete change of circumstances and not one arising from a development of facts known or which should have been known at the time of the order. If the possibility of an event occurring was, or should have been, recognised at the time of the order and that event duly happened but on a scale unforeseen then that will not amount to a qualifying supervening event.
49. Secondly even if the new event did not arise from pre-existing facts it must still be unforeseeable in the sense that it was not envisaged, and could not reasonably have been envisaged, at the time of the making of the order”.
Discretion
“25. Satisfaction of orders against the Crown
(1) Where in any civil proceedings ... against the Crown, or in any proceedings on the Crown side of the King’s Bench Division ..., any order (including an order for costs) is made by any Court in favour of any person against the Crown or against a Government department or against an officer of the Crown as such, the proper officer of the Court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order: Provided that, if the Court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant.
(2) A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the person for the time being named in the record as the solicitor, or as the person acting as solicitor, for the Crown or for the Government department or officer concerned.
(3) If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the appropriate Government department shall, subject as hereinafter provided, pay to the person entitled or to his solicitor the amount appearing by the certificate to be due to him together with the interest, if any, lawfully due thereon: Provided that the Court by which any such order as aforesaid is made or any Court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such directions to be inserted therein.
(4) Save as aforesaid no execution or attachment or process in the nature thereof shall be issued out of any Court for enforcing payment by the Crown of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Crown, or any Government department, or any officer of the Crown as such of any such money or costs.”
“The conduct of the party applying for relief is always an important element for consideration”.
Conclusion
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