Tomlin orders are one of the most common ways of settling civil proceedings in England and Wales, and consists of two parts:
- A consent order which stays proceedings on terms agreed by both parties. This allows a party to return to court and enforce the agreement in the event that the other party fails to comply with its terms. It is important to note that the effect of the stay does not mean proceedings will be discontinued. The court will consider all the facts and circumstances of the case, and providing “proper grounds” or “good causes” can be established, the stay can be removed.
- A schedule that sets out the terms of the settlement between the parties. The terms should be detailed and can go beyond the original scope of the dispute, so long as it is agreed by both parties. The nature of the schedule is a contract, where contractual terms apply, although these are not enforceable by the court as a judgment. There is usually a confidentiality clause within the schedule so to external parties it appears the court has simply ordered a stay of proceedings.
Tomlin order vs consent order
One of the main reasons Tomlin orders are widely used is because of its confidential nature. All binding terms of a standard consent order are publicly listed on the face of the order and are generally limited to the scope of the court proceedings. Tomlin orders are more appropriate for cases that have higher levels of complexity and where parties want settlement terms exceeding the scope of the original proceedings. For example, a consent order for a dispute case typically cover costs and/or prohibit a party from doing something detrimental to the other party, whereas a Tomlin order offers a broader range of actions that can be considered.
However, what Tomlin orders offer in terms of flexibility are balanced by lesser consequences of breach. Standard consent orders constitute fully sealed judgments, and any breach is seen as contempt of court. Tomlin orders on the other hand, are seen as contracts and not actual judgments – since the schedule is not part of the order to stay proceedings – the court’s role is therefore limited to the enforcement of the consent order. Upon a breach of the schedule, a party would have to commence a new set of proceedings to hold the other party to a breach of contract.
At Nath Solicitors we provide legal expert advice on disputes. If you need assistance, please call us on 0203 983 8278 or email us at enquiries@nathsolicitors.co.uk.