hat is a Consent Order?

A consent order is a legal document which presents the details of an agreement between parties to a case. Once the agreement has been drafted, the Court will then be required to approve the Consent Order. This will make it a legally binding document.

When parties have settled their dispute via negotiations or alternative dispute resolution, such as mediation and no other Court orders have been prepared, the parties must prove that the respondent agrees with the contents of the sealed order. This is usually proven within a Court application form.

Obtaining a Consent Order

By the time that a consent order is required, a solicitor, barrister or costs expert is likely to be involved within your case. They will be able to apply their knowledge when drafting the legal document. It is important that an expert with experience drafts the Consent Order, as errors in the order may result in sanctions from the Court.

Once the legal experts have prepared the order, it will be transferred to the Court. A consent order fee will be paid, and the Court will seal the order.

Tomlin Orders

A Tomlin Order is a form of Consent Order. A Tomlin Order will however, enclose a confidential schedule or agreement and will stay a claim on the terms agreed between the parties, rather than as per an order of the Court. If a party does not perform an action which they have agreed to within the main terms of order, the terms cannot be enforced without a further claim.  As a Tomlin Order is an agreement between parties ratified by the Court, whilst a legally binding document, it is not an Order of the Court and therefore proceedings would have to be issued for a breach of contract (whereas breach of a Consent Order would be contempt).

A Tomlin Order may be used to settle a matter when the terms of the agreement are quite complex, require terms that are outside the powers of a Court, or the parties are keen to maintain confidentiality.

Consent Orders in Legal Costs Cases

A Consent Order or Tomlin Order in proceedings can include provision for costs to be assessed, failing agreement.  This provides the Receiving Party with the entitlement to commence detailed assessment, and a Bill of Costs will need to be drafted. The parties will negotiate on this document and will submit Points of Dispute and Replies to the Points of Dispute. If the case is issued within the Court, a party will require a sealed Consent or Tomlin Order to finalise the matter.

Therefore, a Costs Draftsman or Costs Lawyer, alongside the other party’s experts, will reach an agreement and prepare an order which highlights the details of the costs settlement.

Can a Consent Order be Set Aside?

If an unexpected change of circumstances occurs, a Consent Order may be varied or revoked by the Court.  An example of this may be if the terms of any settlement have been found to be fraudulently obtained. Alternatively, on a Tomlin Order, the Court are unable to make any changes to the agreement between the parties.

Enforcement of Consent Orders

A party can seek enforcement from the Court when the opposing party has failed to act upon their side of the agreement.

In relation to costs cases, this may occur if the party fails to pay the legal costs that it has agreed to.

Does the Court Approve all Consent Orders?

If an order is for purely administrative purposes e.g. an order for setting aside a default judgment, the Court will not need to approve it. Instead, as soon as it is filed with the Court, it will become legally binding. Apart from this, all Consent Orders will have to be considered and approved by the Court.

If one of the parties is a litigant in person, the Court will have to approve your Consent Order irrespective of the purpose.

Which Types of Cases use Consent Orders?

Consent Orders can be utilized in all case types.

However, they are quite common within family and civil law disputes. For example, the parties to a divorce can apply for a Consent Order regarding a financial agreement (Financial Order), the division of payments for a credit card, their family home, or the amount of child maintenance payments required. The order will be prepared subsequent to the decree absolute, as money and property disputes can be dealt with once the divorce is finalised.

Consent Orders can be quite useful in these types of disputes as their legally binding nature provides a clean break for the family.

Consent Orders are also used in all civil cases, such as personal injury or medical negligence, as well as commercial and legal aid funded cases.

How can ARC Costs assist with Consent Orders?

ARC Costs are a team of highly experienced Costs Lawyers and Costs Draftsmen, offering legal advice and assistance on all legal cost matters.

When negotiating a settlement on your Bill of Costs, we can prepare Consent Orders for the appropriate agreements if detailed proceedings have commenced and the matter has been listed for a detailed assessment hearing, and terms of settlement therefore need to be ratified and the hearing vacated.

Please contact us if you require assistance with your costs matter on 01204 397302, or email us on info@arccosts.co.uk to receive a response from one of our costs experts.

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