COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Mr Justice Christopher Clarke
1 Bridge Street West, Manchester M3 3FX
B e f o r e :
LADY JUSTICE SMITH
LORD JUSTICE HUGHES
| Greg Anthony Roult (a protected person by his mother and litigation friend, ANGELA HOLT)
|- and -
|North West Strategic Health Authority
David Westcott QC (instructed by Hempsons ) for the Defendant/Respondent
Hearing date: 5 May 2009.
Crown Copyright ©
Lord Justice Hughes:
"Until as late as 15 August 2006, the family were adamant that they did not want Greg, when an adult and on finishing school, to go into a group home run by the local authority they much preferred that Greg should go into his own home supported by an independent care team indeed it is this option that has been costed for in the referred to Schedule. Nevertheless, as the family has gained greater insight into Greg's needs as an adult, they now recognise that a group home, whilst not an ideal solution in all respects, probably does give Greg the best chance of an enjoyable and fulfilling life with greater social interaction with other young men cared for, in the group home support network. So it was, that in readiness for the JSM.1 [first joint settlement meeting], I initially sought to argue on Greg's behalf the case against the group home whereas in fact by the time of JSM.1 and following a conference with Angela [mother] on 15 August 2006 it was recognised that the group home offered the best options for Greg and JSM.1 proceeded on that basis."
Consistently with this approach, when he came to set out the various heads of claim, counsel said of the subheading "Accommodation":
"The whole of this claim obviously fell, once the family decided the group home was the way forward."
"nobody concerned can have supposed or understood that what was reserved for future consideration was the possible care costs associated with going into an individual home"
There is no appeal against that finding. The agreement was that the right approach to future care was that the claimant's needs were such as would be met by being looked after in a Local Authority Group Home and not in privately obtained accommodation on his own. In that, the agreement benefited the defendants, because the cost of privately obtained accommodation and constant solitary care would have been much greater. But the settlement also had advantages for the claimant. A trial was avoided, which would otherwise have been imminent, other items were negotiated as a package, and time was obtained for further investigation of the costs inherent in Group Home care, whereas it may well be that the evidence the claimant sought would not have been available if the trial had gone ahead immediately.
"(7) A power of the court under these Rules to make an order includes a power to vary or revoke the order."
"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 .The 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."
Lady Justice Smith:
Lord Justice Carnwath: