District Judge Peter Glover examines when Tomlin orders are appropriate

Mr Justice Tomlin had been a Chancery judge for four years when he decided the case of Dashwood v Dashwood [1927] WN 276, on 1 November 1927.

Litigation concerning the dissolution of an undertaker's business had resulted in a consent order scheduling terms of settlement, including a prohibition on local competition by the outgoing partner for a period of three years. Mr Justice Tomlin decided that the competition clause could not be enforced by committal unless and until the claimant had obtained an order for specific performance or an injunction to enforce the agreement. He concluded that, the court having stayed the action on the agreed terms, it remained alive only to the extent necessary to enable a party thereafter to enforce the terms. Those scheduled terms did not amount to an order of the court permitting direct enforcement by committal.

Although he went on to become a Lord of Appeal, Baron Tomlin remains best known for his clarification of the legal status of a form of order, already widely used in 1927, which now bears his name. On the day after the decision, he issued a practice note setting out the desired form for such an order, repeated to this day in the standard court texts (for example, at paragraph 40.6.2 of the current edition of the White Book, and procedural guide 28B at page 172 of the 2006 Brown Book).

In recent years, there has been a proliferation in the use of Tomlin orders, particularly in the settlement of personal injury litigation. It seems doubtful whether those who use them in that context really understand their purpose. For example, is it intended by claimants' solicitors that their clients' compensation, agreed in the schedule to such an order, should not be recoverable save by further litigation in the event that payment is not forthcoming on the agreed date or at all? Is that a sensible or proportionate way in which to compromise litigation? What is wrong with a simple judgment for a sum to be paid by a given date?

Although judgments are, strictly, registrable, unless following a contested hearing, there is an absolute entitlement, conferred by regulation 11(2) of the Register of Judgments, Orders and Fines Regulations 2005 (SI 2005/3595), to cancel the registration of any judgment paid within one month of the date of the judgment. But many such judgments are not, in fact, registered at all.

The misuse of Tomlin orders causes further problems because draftsmen have little apparent idea of what goes in the order and what goes in the schedule. By definition, any order, as opposed to an agreement, must appear in the order itself. Thus, if money is to be paid out of court or costs are to be paid by either party to the other, those matters must be dealt with in the order proper.

A salutary example of what can go wrong if an appropriate order is not made is found in the case of Green v Rozen [1955] 2 All ER 796. Counsel agreed a settlement at the court door and noted on their briefs the installment order agreed and the consequences of default, adding the wording: 'By consent all proceedings stayed on terms indorsed on briefs. Liberty to either side to apply.' No court order of any kind was obtained. Predictably enough, an application to enforce the agreement was unsuccessful on the ground that there was no court order to enforce.

In a true Tomlin order, it may be appropriate to conclude the schedule with a term providing that on payment of the sums agreed and costs ordered to be paid, the parties' respective liabilities, each in respect of the other, shall be discharged. Such wording is wholly superfluous in an ordinary court order as the effect of compliance is to discharge it, and yet is commonly included in consent orders submitted for approval.

If it is accepted that the Tomlin form is the exception and not the rule, when may it properly be used? Obvious examples will include where terms are agreed without any admission of liability or where the terms agreed by the parties go beyond what the court has jurisdiction to order. Thus, if terms of settlement are to remain confidential as between the parties, such a condition may be scheduled, as may terms whereby a judgment creditor agrees to accept a lower sum in full and final settlement on conditions as to, for example, the regular payment of specified installments. In such cases, an order can be obtained to enforce those terms 'notwithstanding that they go beyond the ambit of the original dispute, could not have been obtained or enforced in the original action and that the obligation did not exist but arose for the first time under the compromise', said Mr Justice Goff in Phillips v Clarke [1969] 3 All ER 710 (distinguishing re Hearn [1913] WN 103).

A Tomlin order is neither necessary nor appropriate where the settlement simply involves the payment of money, whether by one party to another, or out of court, or to the Compensation Recovery Unit. There is no reason why a court order should not record a payment as being in full and final settlement of any cause of action the parties or either of them may have against one another arising from the accident which is the subject of the claim.

Remember that the court cannot order a party to accept a sum of money in settlement, but it can record the terms on which he has agreed to do so in recitals to the order. A Tomlin order should not be used simply because a recital of the parties' understanding of the ambit of their settlement is considered necessary.

While it is not for the court to interfere with the terms on which claims are compromised - and indeed, it has no right to approve or disapprove them (see Noel v Becker [1971] 2 All ER 1186) - the form of order is a matter for the judge, and practitioners should not be surprised when incorrect or inappropriate Tomlin orders are rejected.

It may be no surprise that their misuse has increased with the emphasis on the speedy completion of work done in considerable bulk rather than attention to detail.

Training on technical aspects of the law may also, perhaps, not be given the priority it deserves. But practitioners should be on their guard against misuse of these valuable hybrids.

District Judge Peter Glover sits at Dartford County Court