Q&As

Can a settlement agreement, appended as the confidential schedule to a Tomlin Order, provide that in the event of default under the agreement the proceedings are automatically reactivated in full (such that the settlement agreement falls away, rather than the proceedings being to enforce the terms of the settlement)?

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Published on LexisPSL on 29/07/2019

The following Dispute Resolution Q&A provides comprehensive and up to date legal information covering:

  • Can a settlement agreement, appended as the confidential schedule to a Tomlin Order, provide that in the event of default under the agreement the proceedings are automatically reactivated in full (such that the settlement agreement falls away, rather than the proceedings being to enforce the terms of the settlement)?
  • What can the terms scheduled to a Tomlin order cover?
  • What can a party do where there has been a breach of the terms scheduled to Tomlin order?

Can a settlement agreement, appended as the confidential schedule to a Tomlin Order, provide that in the event of default under the agreement the proceedings are automatically reactivated in full (such that the settlement agreement falls away, rather than the proceedings being to enforce the terms of the settlement)?

A Tomlin order is a form of consent order which first originated in the case of Dashwood v Dashwood [1927] WN 276 (not reported by LexisNexis®), where proceedings were stayed on terms which the parties had agreed, and only kept alive to the extent necessary to enable any party thereafter to enforce the terms. Unlike court orders by consent generally, a Tomlin order constitutes a binding contract between the parties so the court can only re-open the dispute between the parties where it could intervene with any other contract.

What can the terms scheduled to a Tomlin order cover?

Terms scheduled to a Tomlin order represent an arrangement between the parties and the court is not concerned with approving them, although it may properly offer suggestions upon them if it appears to the court that they may cause some difficulty Noel v Becker. See also in relation to this point Shah v Chafer where the Court of Appeal confirmed that it did not have power to alter the parties’ agreement save in those unusual circumstances which might entitle

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