07pt PL Settlement Consent Tomlin Order DN

Settlement: Consent/Tomlin order (with drafting notes), Practical Law UK Standard...
Settlement: Consent/Tomlin order (with drafting

notes)
by Practical Law Dispute Resolution
Standard documents | Maintained | England, Wales
An example precedent Tomlin order (with integrated drafting notes), which is a type of consent order. It recites that the parties
have agreed terms of settlement, and orders that all further proceedings are stayed, but the parties are entitled to apply to court
to enforce the agreed terms, should that become necessary, without having to commence new proceedings.
General document notes

This is an example of a precedent Tomlin order. A Tomlin order is a type of consent order. It recites that the
parties have agreed terms of settlement, and orders that all further proceedings are stayed but the parties
are entitled to apply to court to enforce the agreed terms, should that become necessary, without having to
commence new proceedings. Note that the parties are not entitled to seek an order that the action should
proceed to trial and, if you wish to have this option, you will need to include the right to restore proceedings,
or to sign judgment if specified conditions are not met, within the agreed terms.
Each element of the order should be set out in separate, numbered paragraphs.
The Tomlin order would need to be adapted if you are in the Chancery Division to comply with paragraph
22.12 in the Chancery Guide, which sets out a correct form of order, taking into account that confidential
schedules are no longer accepted by the Chancery Division. In addition, it must comply with HMCTS Note:
Sealing of Tomlin Orders.
For more information generally on consent orders, including Tomlin orders, see Practice note, Consent orders
and judgments.
Action headings
This document assumes that proceedings take place in the Business and Property Courts (B&PCs) located in
the Rolls Building in London, in which case you must use the prescribed form of action heading (see Checklist,
Action headings and the Courts Electronic Filing System (CE-File), Business and Property Courts).
If you are adapting this document for use in a court other than the B&PCs located in the Rolls Building in
London, you need to consider how this will affect the action headings.
• If you are litigating in the B&PCs District Registries, see Checklist, Action headings and the Courts
Electronic Filing System (CE-File): Action headings in the B&PCs District Registries of the B&PCs.
© 2019 Thomson Reuters. All rights reserved. 1

• If you are litigating in the non-specialist courts of the QBD located in the Central Office of the Royal
Courts of Justice in London, see Checklist, Action headings and the Courts Electronic Filing System
(CE-File): Action headings for non-specialist QBD courts, London.
• If you are litigating in the non-specialist QBD District Registries, see Checklist, Action headings: Action
headings for non-specialist QBD courts: District Registries.
Electronic Working
Proceedings commenced by a professional court user in the B&PCs within the Rolls Building in London must
be commenced using the Courts Electronic Filing System (CE-File) (see Checklist, Action headings and the
Courts Electronic Filing System (CE-File): CE-File in the B&PCs in the Rolls Building, London).
It is important to consider the Electronic Working requirements, if any, if you are adapting this document for
use in a court other than the B&PCs in the Rolls Building. For information on whether CE-File is permitted,
or indeed mandatory, in any court other than the B&PCs within the Rolls Building, see the following sections
of Checklist, Action headings and the Courts Electronic Filing System (CE-File):
• CE-File in the District Registries of the B&PCs.

• CE-File in the specialist County Courts that carry out B&PCs work.
• CE-File in the non-specialist QBD courts, London.
• CE-File in the non-specialist QBD courts: District Registries.
Paragraph 1
This is the order staying all further proceedings except for the purpose of enforcing the agreed terms. The
agreed terms can be set out in one of several ways:
• In a schedule at the end of the Tomlin order.

• In a settlement agreement which is annexed to the order.
• In a separate document.
It is important to consider which method is most appropriate, especially if there are any confidentiality issues
and bearing in mind CPR 5.4B and CPR 5.4C (which allow a party to the proceedings, but not necessarily to
any settlement, and a non-party respectively to obtain from the court records any document filed by a party,
although the court's permission would be needed for an annex or schedule to a Tomlin order).
In brief, if the agreed terms are confidential or particularly sensitive or involve significant sums of money or
possibly where the terms go beyond the scope of the issues in the litigation (for example, by settling other
potential disputes), you may prefer to include the agreed terms in a separate document which is not annexed
to the order. If you do this, it is important to ensure that the document is clearly identified by referring to the
parties to, and the date of, the separate agreement. Including such details will not enable a person who is party
to the proceedings but not to the settlement to inspect the separate settlement agreement under CPR 31.14
(which allows the inspection of documents mentioned in certain types of documents, including statements of
case) because the latter does not apply to documents referred to in a court order. You should also consider
ensuring that:

• The recitals to the Tomlin order state that the agreed terms are confidential and are not to be filed at
court.
• The schedule or annex setting out the terms is not in fact kept on the court file (unless, of course, the
court insists that it must be kept on the court file).
For more on this, see Practice note, Consent orders and judgments: Situations where a Tomlin order may
be appropriate.
Paragraph 2
This gives the parties permission to apply to enforce the agreed terms without having to start a new claim.
Paragraph 3
You must make provision for payment and assessment of costs within the order as opposed to the schedule of
agreed terms (PD 40B paragraph 3.5). Otherwise, there will be no judgment as to costs and interest on those
costs will not accrue, nor will you be able to apply for assessment. Further, the costs order must be clear in
order to avoid any subsequent disputes between the parties in this regard and to ensure that the court is able
to seal the order without the need for a hearing. PD 44.9.4 adds that, where parties to an application agree
an order by consent without any party attending, they "should seek to agree a figure for costs to be inserted
in the consent order or agree that there should be no order for costs".
Other points
For what is required in a Tomlin order, see Practice note, Consent orders and judgments: Requirements for
the form of consent orders. This lists the basic requirements for all consent orders, including who can sign
the order and the requirement for including the date when it was made. There is also a section on Fee for
filing consent order.
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Settlement: Consent/Tomlin order (with drafting notes), Practical Law UK Standard...

Settlement: Consent/Tomlin order (with drafting

Standard documents | Maintained | England, Wales

General document notes

© 2019 Thomson Reuters. All rights reserved. 1

• CE-File in the District Registries of the B&PCs.

• In a schedule at the end of the Tomlin order.

© 2019 Thomson Reuters. All rights reserved. 2

© 2019 Thomson Reuters. All rights reserved. 3

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