The claimant had succeeded in an earlier remedy award, which was later varied on appeal and remitted for rehearing on mitigation. In January 2024, ahead of the remitted hearing, the parties exchanged a draft consent order, to which the claimant agreed, settling the mitigation issue. However payment was delayed, allowing time for the claimant to withdraw his consent and seek a full remedy hearing instead. At a further hearing, the employment judge nonetheless made an order in the January terms "by consent" under rule 64. The claimant appealed.

HHJ Auerbach allowed the appeal, deciding that rule 64 (now rule 62) permits a consent order only where both parties currently want it made. The rule cannot be used where one party has clearly communicated withdrawal of consent before the order is made, even if they consented earlier and were not misled or under duress. He therefore quashed the order under appeal and the matter was remitted for substantive determination.