A consent judgment is a judgment recorded or entered before a Judge or Court by consent of parties. It is basically an order or judgment based on a settlement or agreement of parties. In practice, normally, a consent judgment is entered after a successful mediation. The Judge or the Court does not decide on the case and its role is merely to record the terms that have been agreed by parties.
It has the legal force liken to a normal judgment – it can be executed and enforced against the non-complying party. While a judgment decided by the court based on the evidences before it, is appealable, a consent judgment is not. While it is unlikely for a party to challenge a consent judgment after consenting to it, there are circumstances where a party can challenge a consent judgment. What are they?
To begin with, it must be noted that the mode of challenging is by filing an application to set aside and not by filing an appeal. An appellant appeals when it is opined that that the deciding judge is wrong in reaching its decision. Therefore, an appeal will allow the matter be heard again by the appellate court. For a consent judgment, there is nothing to be appealed against as it is not something that had been decided by the court. It is essentially a contract with the command of court.
“A consent judgment or order is not the less a contract, and subject to the incidents of a contract, because there is superadded the command of the court, and its force and effect derives from the contract between the parties leading to, or evidenced by, or incorporated in, the consent judgment or order.” – Tan Geok Lan v. La Kuan [2004] 2 CLJ 301 Federal Court
The basis of a consent judgment is the existence of an agreement. Without an agreement, there will be no consent judgment. By this logic, if the agreement is vitiated, then the consent judgment could be set aside. Following from this, the grounds that can vitiate an agreement are the same as the grounds vitiating free consent which include fraud, mistake, total failure of consideration, misrepresentation, coercion, undue influence and other grounds in equity.
“A consent order is an order of the court carrying out an agreement between the parties. It used to be thought at one time that only a ground of fraud could cause a consent order to be set aside. It is now well settled that a consent order can be set aside on the same grounds as those on which an agreement may be set aside.” – Khaw Poh Chhuan v. Ng Gaik Peng & Yap Wan Chuan & Ors. [1996] 2 CLJ 185 Supreme Court
A consent judgment can also be set aside if the effect of the consent judgment would cause grave injustice to the party in question. – Lagenda Kencana Sdn Bhd v. Peter’s Holdings Sdn Bhd & Anor [2012] 3 CLJ 824 ]
Question: Ms Lee has appointed Mr Aiman as her lawyer in a suit between Company ABC and herself. A consent judgment was entered into. Can Ms Lee challenge the consent judgment by arguing that Mr Aiman does not have authority to enter consent judgment on her behalf?
Answer: Yes.
However, it is hard to succeed on the ground of lack of mandate because it would be an uphill battle to prove it. Reasons as follows:-
1. The law has become well established that the solicitor or counsel retained in an action has an implied authority as between himself and his client to compromise the suit without reference to the client.
2. Any injustice suffered by the client could be resolved in the context of a claim against his counsel.
3. There is no obligation to prove express authority.
4. A solicitor or counsel by implication had authority to compromise. The petitioner and the court, are entitled to assume the existence of authority when the lack of authority is not specifically brought to the attention of the petitioner or the court at that material time.
5. If the plaintiffs genuinely have a gripe against their former solicitors, it is for them to take it up with their former solicitors; for it cannot validly form a premise for the setting aside of the consent judgment.
[See: Stone Master Corporation Bhd V. Dato Koh Mui Tee & Ors; Dato’ Lee Fong Yin @ Lee Vun Ya (Third Party) [2019] 1 LNS 1571]
It is however, possible if there are clear indications that the consent order was recorded without the authority or knowledge of the parties or any one of them, particularly where the effect of which, if not set aside, would cause grave injustice to the party in question. – Lagenda Kencana Sdn Bhd v. Peter’s Holdings Sdn Bhd & Anor [2012] 3 CLJ 824
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