Consent orders and Tomlin orders
Consent orders are based on a contract between the parties and all elements of the agreement need to be present at the time the agreement is formed. The terms of the order are set out in a series of numbered paragraphs, and if any of the terms are not complied with, enforcement is possible. Depending on the nature of the term, an application to the court may or may not be necessary for enforcement.
A consent order may be drawn up staying all proceedings under the terms of the order. In this case, the court may be reluctant to remove the stay and fresh proceedings for breach of contract may be required for enforcement. Once the consent order has been made, the court has no power to vary it.
CPR 40.6 allows consent orders to made and sealed by a court officer without approval from a judge, however, this does not apply when any of the parties is a litigant in person. The order has to be drawn up with all the agreed terms and bear the words ‘By Consent’ and has to be signed by solicitor representing each party. In cases where terms are annexed in a schedule, provisions regarding the payment of money out of court should be contained in the body of the order rather than in the schedule.
If one of the parties is a litigant in person, the consent will need to be approved by the court. Either party may make the application for approval. The application may be considered at a hearing or dealt with without one.
Tomlin Orders are named after Tomlin J and are used where complex terms and agreed or to avoid publicity of the agreement. The order stays proceedings with the terms scheduled to the order. The order should be worded:
TIPYou may want to get additional conditions into the order, such as a clause allowing you a 14 day ‘grace period’ in case of a missed payment, before they can exercise their right to apply to lift the stay and enter judgment.
“And, the claimant and the defendant having agreed to the terms set out in the annexed schedule, it is ordered that all further proceedings in this claim be stayed, except for the purpose of carrying such terms into effect. Liberty to apply as to carrying such terms into effect.”
Any direction for the payment of money out of court or for the payment and assessment of costs must be contained in the body of the Tomlin order and not in the schedule. This is because these forms of direction require court action and must be included in the public part of the order and not in the schedule. If the amount of costs has been agreed, this can be included in the schedule.
Terms in the public part of the order can be varied in case of a change of circumstances. Terms within the schedule can only be varied in cases of fraud, misrepresentation or mistake. If the terms are breached, the claim must be restored under the liberty to apply clause and an order obtained to compel compliance with the term breached. If that order is breached, enforcement can follow in the same way as with any court order.