Consent Orders Settling Quantum Constitute 'Judgment' For CPR 36.17 Purposes

A consent order requiring payment of an agreed damages sum constitutes a “judgment” for the purposes of CPR 36.17, triggering enhanced costs consequences where the settlement exceeds the claimant’s Part 36 offers.

THOMAS V SECRETARY OF STATE FOR THE HOME DEPARTMENT [2025] EWHC 3274 (KB)

In Thomas v Secretary of State for the Home Department [2025] EWHC 3274 (KB), His Honour Judge Freedman, sitting as an additional High Court judge, determined costs consequences following settlement of the claimant’s unlawful detention claim. After a finding of liability, quantum was agreed at £16,000 and embodied in a consent order. The issue was whether this settlement constituted a “judgment” engaging the costs consequences under CPR 36.17, given that the sum exceeded the claimant’s earlier Part 36 offers. The defendant argued the rule required a formal judgment after trial. Applying the Court of Appeal’s reasoning in Vanden Recycling Ltd v Kras Recycling BV [2017] EWCA Civ 354, which focused on substance over form, Judge Freedman held the final, enforceable order for payment was in effect a judgment for CPR 36.17 purposes, a view supported by White Book commentary to CPR 40. The court accepted that the usual Part 36 costs consequences should run from 8 November 2021, set interest on costs at 7%, and ordered the claimant to bear the costs of an application dated 9 May 2025.

In my judgment, similar reasoning applies in the instant case. The mere fact that the word judgment does not appear in the Consent Order is of no consequence, when considering the effect of the Consent Order. Indeed, an order made by the Court following a Trial could have been drafted in precisely the same terms as the Consent Order.… Whatever the Defendant may have intended, the true effect of this Consent Order is to enter judgment in favour of the claimant in the sum of £16,000. It is enforceable in precisely the same way as if the Court had awarded damages to the Claimant at the end of the trial.

Citations

Vanden Recycling Ltd v Kras Recycling BV [2017] EWCA Civ 354 A consent order requiring the defendant to pay a specified sum in settlement of claims was treated as a judgment for the purposes of barring claims against other tortfeasors liable for the same damage.

CPR PD 47 para 8.2 points of dispute compliance detailed assessment

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Trustee indemnity from estate in hostile litigation under CPR 44.2

Judicial review costs causation CPR 44.2 successful party determination

Judicial review settlement costs CPR 44.2 successful party determination

Consent order judgment CPR 36.17 Part 36 costs consequences settlement

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BARONESS LAWRENCE & ORS v ASSOCIATED NEWSPAPERS LIMITED [2025] EWHC 3207 (KB)

Permission hearing costs award CPR 52.6 exceptional circumstances hopeless grounds

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Key Points

A consent order requiring a defendant to pay a specified sum in full and final settlement of a claim can, in substance and effect, constitute a “judgment” for the purposes of engaging CPR 36.17, even if the order does not use the word “judgment”. $§13, §15$
When determining whether an order amounts to a judgment, the court will focus on the substance and effect of the order rather than its precise wording. A final order requiring payment in respect of the claim is to be treated as equivalent, in substance, to an order made following a judgment. $§12-13$
Where a claimant obtains a judgment (including a qualifying consent order) that is more advantageous than its own Part 36 offer, the court held that the usual costs consequences under CPR 36.17 are engaged from the expiry of the relevant period. $§6, §17$
Although the court retains a discretion under CPR 36.17(5) to disapply the usual costs consequences if it would be unjust to do so, no such argument was advanced in this case, and the court observed that there was no reasonable basis on the facts for such an argument. $§16$
Once CPR 36.17 is engaged, the court has a discretion to set the rate of interest on costs, and in this case exercised that discretion by fixing the rate at 7%. $§18 (i).$

"The mere fact that the word judgment does not appear in the Consent Order is of no consequence, when considering the effect of the Consent Order. Indeed, an order made by the Court following a Trial could have been drafted in precisely the same terms as the Consent Order."

Key Findings In The Case

The court found that although the agreed damages were incorporated into a consent order rather than determined following a trial, the consent order was substantively equivalent to a judgment and thus triggered the costs consequences under CPR 36.17 [13], [15].
The Claimant had made four Part 36 offers prior to settlement, all of which were for amounts lower than the eventual agreed sum of £16,000, thereby rendering the final outcome more advantageous than those offers and engaging CPR 36.17 [5], [6].
The Defendant argued that a Part 36 costs regime could not apply in the absence of a judgment following a contested hearing, which the court rejected based on authority and the substantive effect of the consent order [7]–[9].
The court determined that there was no reasonable basis to conclude that applying CPR 36.17 would be unjust in the circumstances, and thus declined to exercise its discretion under Rule 36.17(5) to disapply the usual costs consequences [16].
The court exercised its discretion to set the rate of interest payable on the Claimant’s costs at 7%, and further ordered that the Claimant bear the costs of a specific interim application concerning a late witness statement dated 9 May 2025, departing from the Claimant’s proposal on those points [18].

"I am fortified in reaching this conclusion by what is said in the White Book commentary to CPR 40: it is pointed out that although the CPR refers to the two terms ('judgment' and 'order'), sometimes in conjunction and sometimes not, 'no basis for distinguishing between them can be derived from the rules themselves'."

The High Court’s decision in Thomas v Secretary of State for the Home Department [2025] EWHC 3274 (KB) confirms that consent orders settling damages claims trigger the costs consequences under CPR 36.17.

Background

The claimant, Michael Anthony Thomas, a Jamaican national, brought proceedings against the Secretary of State for the Home Department for unlawful detention during early 2020. Following a contested hearing, judgment on liability was given on 22 November 2024, finding that the claimant had indeed been unlawfully detained for a period [§1]. The issue of quantum was adjourned for further submissions but was subsequently agreed between the parties [§2].

On 23 July 2025, a consent order was agreed [§3]. It recorded the defendant’s agreement to pay the claimant £16,000 in full and final settlement of his claim for damages, with the issue of legal costs remaining unresolved. The order provided a timetable for written submissions on costs, to be determined by the court without a hearing. Prior to the liability trial, the claimant had made four Part 36 offers, all for sums lower than the eventual £16,000 settlement figure [§5].

Costs Issues Before the Court

The primary issue for determination was whether the costs consequences under CPR 36.17 were triggered by the settlement [§6]. The rule provides enhanced costs consequences for a claimant who obtains a judgment at least as advantageous as their own Part 36 offer. The settlement sum of £16,000 exceeded all the claimant’s previous Part 36 offers. The dispute centred on whether a settlement encapsulated in a consent order constituted a “judgment” for the purposes of engaging CPR 36.17, or whether the rule required a formal judgment following a contested trial.

The Parties’ Positions

The Defendant’s Position: Counsel, Mr Gwion Lewis KC, argued that CPR 36.17 was not engaged [§7]. He relied on the rule’s title, “Costs consequences following judgment”, and its wording which refers to consequences applying “upon judgment being entered”. He submitted that the term “judgment” connoted an independent judicial decision on damages following a contested hearing [§8]. A settlement, even one embodied in a court order approved by a judge, was not a “judgment” and therefore the automatic costs consequences of Part 36 did not apply.

The Claimant’s Position: Counsel, Mr Gordon Lee, contended that the compromise contained within a sealed court order was equivalent to a judgment being entered [§9]. He argued this was merely a semantic difference. In support, he referred the court to the Court of Appeal authority of Vanden Recycling Ltd v Kras Recycling BV [2017] EWCA Civ 354 [§10], which considered the effect of a consent order in the context of claims against concurrent tortfeasors.

The Court’s Decision

The court found in favour of the claimant, holding that the true effect of the consent order of 23 July 2025 was to enter judgment in favour of the claimant in the sum of £16,000 [§15]. The court applied the reasoning from Vanden Recycling, where the Court of Appeal had focused on the substance and effect of a consent order rather than its precise wording [§12]. Hamblen LJ had stated that if an order requires a defendant to pay a specified sum in respect of the claimant’s claims and is a final order, then “in substance and in effect” it is the same as an order made following a judgment.

The court concluded that the mere fact that the word “judgment” did not appear in the consent order was of no consequence when considering the order’s effect [§13]. Indeed, an order made by the court following a trial could have been drafted in precisely the same terms. The consent order was enforceable in precisely the same way as if the court had awarded damages to the claimant at the end of the trial [§15]. This interpretation was supported by commentary in the White Book to CPR 40, which noted that the Civil Procedure Rules provide no clear basis for distinguishing between the terms “judgment” and “order” [§14].

The court recorded that the defendant had not argued it would be unjust in all the circumstances for the Part 36 costs consequences to apply, and the court observed there would be no reasonable basis for such a finding [§16].

As the settlement sum was more advantageous than the claimant’s Part 36 offers, the costs consequences under CPR 36.17 were engaged. The court accepted that the usual costs consequences should run from 8 November 2021, being 21 days after the first Part 36 offer of £15,000 [§17]. The court stated that the resulting order would follow the claimant’s written proposal (paragraph 10 of Mr Lee’s submissions), subject to two modifications: the interest rate on costs was set at 7%, and the claimant was required to bear the costs of the application dated 9 May 2025 to adduce a witness statement [§18].

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