What is a Tomlin Order?

A Tomlin Order is a Court order under which a Court action is stayed. They are often used in civil cases, such as personal injury, and within commercial litigation. Moreover, they can be used as a way of stopping a County Court Judgment from going ahead.

This type of Order is used to record terms that have been agreed between two parties and operates as a contractual document which is legally binding. As such, it is a form of consent order however, there are some notable differences between the two.

The agreed terms of settlement should remain confidential between the two parties; however, some of the terms set will be open to public inspection. This type of Order contains obligations to carry out certain actions within a given timeframe to avoid entering the judgement. 

Tomlin Orders were first introduced by Mr Justice Tomlin in the High Court case of Dashwood v Dashwood [1927] WN 276. Following the case he issued a Practice Note; however, these Orders are now governed by the Civil Procedure Rules, under section 40.6.

 Tomlin Orders can have many different rules and conditions. When they are written correctly, they are clear and short. Tomlin Orders usually contain one or more of the following terms:

• The case will stop if both sides agree.
• Each party has permission to apply to the court to make sure the agreement is followed without starting a new case.
• If needed, payment of money can be made according to the order.
• If there is a deadline for paying money, it will be mentioned in the order.
• If the deadline is not met, the order may include paying legal costs and interest. Other issues agreed upon to settle the dispute may also be mentioned.

Why are Tomlin Orders Used?

Rule 1.1 of the Civil Procedure Rules states that “the overriding objective of the Civil Courts in England and Wales is to deal with cases justly and at proportionate cost.” As a result of this rule, parties should aim to settle their case at the earliest opportunity without utilising unnecessary Court resources. The outcome of Consent Orders and Tomlin Orders means that an agreement is reached on a dispute, staying the proceedings, settling the case and mitigating additional legal costs of proceeding to a contested Trial.

The Difference between a Tomlin Order and a Consent Order

In the case of Vanden Recycling Ltd v Kras Recycling BV  [2017] EWCA Civ 354 Hamblin LJ highlighted the differences between Consent and Tomlin orders:

“Thus a court will not make a consent order unless satisfied that it has power to do so, whilst it has no right to disapprove a Tomlin order and such an order can include matters that the court has no power to order. A breach of a consent order may be punishable as a contempt in appropriate circumstances, whilst the remedy for breach of the scheduled terms of a Tomlin order is a claim for breach of contract. In terms of enforcement, the remedies in CPR Part 83 are available for breach of a consent order but not for breach of a Tomlin order. Variation of a consent order is possible in the interests of justice, whilst rectification would be necessary to vary the contractual terms of a Tomlin order. Confidentiality for a consent order requires CPR 39.2 to be satisfied, whilst it can be contractually agreed for a Tomlin order. An appeal of a consent order is possible subject to the usual permission test, whilst there is no appeal from the agreed terms of a Tomlin order. These differences reflect the fact that a consent order is an order of the court whilst the scheduled terms to a Tomlin order are a contractual agreement.”

In simple terms, a breach of the Tomlin Order will require fresh proceedings to be made for breach of contract in order to enforce the terms of the schedule, whereas, a breach of a Consent Order may be seen as contempt.

One of the main benefits of using a Tomlin Order over a consent Order is the fact that a Tomlin Order provides more of a basis for seeking legal costs and also allows the parties to agree to remedies which the Court cannot order.

How can ARC Costs Assist?

ARC Costs are a team of independent and experienced Costs Lawyers and Costs Draftsmen who can assist in the negotiation and recovery of your costs under the Detailed or Provisional Assessment process. As independent costs experts, we can act for either the Paying or Receiving Party in any costs dispute.

The question of costs can be an extremely complex area of law. However, with over 20 years of costs law experience, our Costs Lawyers and Costs Draftsmen can always provide reliable advice and assistance in the recovery or negotiation of costs in the case.

Due to the complex nature of these types of cases, we would always recommend that you employ a legal costs expert to assist with your matter. Our team have the skills and experience to provide accurate bills of costs as well as Points of Dispute and Points of Reply. Our costs lawyers can also provide representation at Court if your case proceeds to a detailed assessment hearing or necessitates any advocacy requirements.

If you have a costs query upon you require some initial free advice, please contact the team by phone on 01204 397302 or email us at info@arccosts.co.uk.

ARC Costs are registered in England and Wales and our Costs Lawyers are authorised and regulated by the Costs Lawyer Standards Board.

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