The facts of R (on the application of MMK) v Secretary of State for the Home Department (consent orders – legal effect – enforcement) [2017] UKUT 198 (IAC) involved the not uncommon scenario of the Home Office withdrawing its decision in response to an application for judicial review, agreeing a consent order which included an agreement to pay the costs of the claimant and to make new decision be made within a certain time and then failing to comply with that consent order.

As an aside, this is why the headline figures on success rates for applications for judicial review are so misleading: because a very significant number of claims are settled out of court in the claimant’s favour.

In this case the agreed time frame for a new decision was 3 months. It took the Home Office some 10 months actually to issue the decision, however, and even longer to get around to paying the claimant’s legal costs.

What, if anything, could the claimant do about this blatant disregard for a consent order, which is after all an order of the court? And what, if anything, would the tribunal do about the apparently flagrant contempt (not necessarily in the legal sense) for its order?

One problem was that the judicial review proceedings appeared on the face of it to have ended at the time the consent order was made. The claimant’ solicitors wrote to the tribunal asking that the proceedings be reinstated so that the terms of the order could be enforced.

President McCloskey observes that the Upper Tribunal does have the power to punish for contempt of court but that it is a power which is “practically arbitrary and unlimited” and to be exercised with “utmost caution”. Whether that will be any consolation to Amber Rudd given the facts of the Samim Bigzad case remains to be seen.

The President goes on to find that the proceedings were in truth ended and there was no power to resurrect them. This was because of the final terms of the consent order in question. Further, the exact terms of the consent order did not mandate the Home Office to do anything other than pay costs. The agreement of the Home Office to make a new decision was set out in a recital to the order, not in the body of the order nor in an undertaking to the court.

Astute litigators tired of Home Office non compliance will note that this particular case failed because of the precise terms of the order and the inclusion of the “agreement” to make a new decision in the recital. Including required actions in the main, mandatory body of the order should be straightforward. No doubt the tribunal will prove reluctant to agree open ended orders which can be returned to court for enforcement, but what else can claimants and the tribunal do in the face of this bureaucratic blockade?

Finally, the official headnote:

(i) The commonly used forms of consent order do not expose either party to possible contempt action or other sanction.

(ii) The remedy for non – compliance with a consent order will normally be the initiation of a fresh judicial review claim.

And the judges of the Upper Tribunal wonder why non compliance with procedural requirements is becoming endemic.