A Tomlin order is a type of consent order which records that the parties have agreed terms of settlement (which are not contained in the order, but are usually set out in an accompanying schedule), and orders that all further proceedings be stayed. If the terms of the settlement agreement are not carried out, the parties can apply to the court to enforce the agreed terms without having to commence new proceedings.
Tomlin orders are used for a variety of reasons, such as:
- when terms are agreed without admission of liability;
- where the terms are complicated or go beyond what the court has jurisdiction to order; or
- where the parties have agreed that certain terms will remain confi dential.
In such circumstances, the order will contain the orders that the parties would like the court to make, such as staying the proceedings, making relevant orders for costs and granting permission to apply. The other settlement terms will be contained in the schedule to the order.
Court powers in respect of consent orders
In respect of consent orders other than Tomlin orders, where there is no schedule and all of the terms of settlement are included within the order, the terms are ordered by the court.
Although the courts have jurisdiction to vary or revoke the terms included in a consent order, they are reluctant to do so, since this would entail interfering with a bargain into which the parties had freely entered. Therefore, a court will vary or revoke a consentorder only in limited circumstances. In Weston v Dayman1 Lord Justice Arden said: “I would accept that the court should accede to an application for variation where it is just to do so, but in my judgment one of the aspects of justice is that a bargain freely made should be upheld. Mr Weston clearly obtained benefi ts under the order. It may well be that those benefi ts are not as great as he thought, but that is not a matter for this court. In those circumstances I do not consider it would be right for this court to exercise its discretion to vary the order as sought.”
The same discretion does not apply in respect of Tomlin orders, since the court is not deemed to have ordered or even approved the terms of the schedule. As Lord Steyn said in Sirius International Insurance Co v FAI General Insurance Ltd: “The settlement contained in the Tomlin order must be construed as a commercial instrument.” 2
The court therefore does not have the same procedural powers in respect of the terms included in the schedule to a Tomlin order. Aside from the fact that the parties may apply in the proceedings to court to enforce its terms, the schedule is generally to be treated like any other settlement agreement not attached to an order.
In Community Care North East (a partnership) v Durham County Council3 the council sought to vary the terms of a Tomlin order whereby proceedings brought by the claimant were stayed. The council invited tenders in respect of the provision of care services. Community Care North East was unsuccessful in its tender and contended that the council’s approach to the interview stage had not complied with the principle of transparency in relation to public procurement under EU law. It applied for an injunction to prevent the council from entering into contracts with other service providers. Before the return date for the injunction hearing, Community Care North East and the council compromised the proceedings using a Tomlin order, which ordered that “[t]hese proceedings be stayed save for the purpose of giving effect to the terms, for which there be liberty to apply”.
The relevant term of the schedule to the order provided as follows:
“The [d]efendant will set aside the results of the interview stage of the said tender process and invite all those who were previously invited to attend those interviews to attend for interview again, the detailed arrangements for which shall be announced in due course. The interview process will be carried out in accordance with all current legislation and any other enforceable Community obligations.”
The council re-ran the interview stage and Community Care North East was subsequently awarded contracts. Three other tenderers, who were less successful, sought to challenge the council’s decision and commenced their own proceedings.
The council wanted to settle the second set of proceedings, but it was concerned that the Tomlin order might present an obstacle to settlement. It therefore issued an application in the case brought by Community Care North East to vary the schedule to the Tomlin order by replacing the existing paragraph with the following words: “The defendant will commence a new procurement process, which will be carried out in accordance with all current legislation and any other enforceable community obligations.”
The council submitted that the variation of the terms in this way was a clarifi cation to take account of circumstances which the parties could not have had in mind when entering into the Tomlin order.
The application raised the issue of the extent to which a court can vary a Tomlin order. The issue for the court was whether it had the power to vary the terms of the March 2009 order and, if so, on what basis.
The judge refused the council’s application to vary the terms of the Tomlin order as requested. He did not consider that the court had the power to vary the terms of the settlement agreement in the schedule to a Tomlin order. The judge decided that there was no general power to do so in respect of settlement agreements; he did not consider that incorporating an agreement into a Tomlin order changed that position. He considered that the provisions of the Civil Procedure Rules do not apply to terms of an agreement in the schedule to a Tomlin order – terms to which parties have freely agreed.
This decision makes clear that a court has no more power to vary the terms contained in the schedule to a Tomlin order than it has to vary any other agreement not attached to a court order.
There is no general liberty to apply which gives a right to vary the entire agreement; rather, there is a liberty to apply only to enforce the terms of the settlement agreement in the schedule. Only if the order part of the Tomlin order includes an express liberty to apply to vary the terms of the schedule will the court have such power. Even then, the scope of the liberty to apply must be clearly defi ned. In the absence of express liberty to apply to vary the terms of the schedule, the court can interfere with the terms of the agreement only in the same way as any other contract.