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Tomlin orders

This page contains an article dealing with the general principles of Tomlin Orders and details of a Court of Appeal case on rectification of a Tomlin Order. See also the Charging order page which contains details of a case where a trust created by a Tomlin Order was held to have priority over a subsequent charging order.


General Principles

By William Hanbury, barrister
www.exchangechambers.co.uk

Introduction

What are the consequences that follow for the client who refuses to comply with the agreed terms in a Tomlin Order and what procedure should be adopted by the enforcing party?

In addition, the parties commonly fail to deal with a particular aspect that they would have been expected to have dealt with. What is the court’s role in construing the agreement and if necessary inserting additional terms where these are necessary to make sense of the agreement? If the order is in Tomlin form, in what circumstances may the stay be lifted and does that mean the parties may litigate the matter as if there were no stay imposed?

These points, as well as how to avoid the pitfalls, which beset this area, will now be considered.

What is a Tomlin order?

A Tomlin order is a form of consent order which brings the proceedings to a conclusion save for the purposes of implementing the agreed terms, which are usually referred to in the schedule to that order or sometimes referred to in a separate document or documents. They are only one of a number of possible orders available (set out in Part 40.6 CPR) and should only be used where appropriate. The form of order is prescribed by the Chancery Guide at 9.16.

The important characteristics of this type of order are as follows:
  • Like any other compromise, but unlike court orders “by consent”, i.e. where the parties have not objected to an order being made but have otherwise not reached a binding compromise, a Tomlin order constitutes a binding contract between the parties;

  • The compromise, usually embodied in the schedule to the order, may go beyond the subject matter of the litigation.

  • The court’s jurisdiction is limited to ensuring the correct form of words has been used in the order but, unless, for example, a consenting party lacks capaci ... THIS IS AN EXTRACT OF THE FULL TEXT. TO GET THE FULL TEXT, SEE BELOW

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