Court Claim Form Lowell/Carter - jd williams

[shamrocker]

Hi can anyone help with my ? #46, feel like I should send it over but don't want to appear rude.

 

No worries - you're not a pain at all. Just send it anyway and include a cover letter stating that you were confused about the dates and what was required with the submission of the witness statement. In an ideal world, you'd have sorted this by the date stated within the directions (as Andy points out above), but you have nothing to lose by sending it. If you're going to email it to both the court and Carter, I'd personally add a note stating that a hard copy will follow by post. Then post a physical copy to them too.

[james2604]

Great thanks.

[The Mould]

The White Book Vol.1 commentary and cases on Tomlin orders.

 

 

Tomlin orders

40.6.2 There are various ways in which a claim can be disposed of when terms of settlement are arrived at. One method is known as the Tomlin form of order, suggested by Tomlin J. in Practice Note [1927] W.N. 290, following the decision in Dashwood v Dashwood (1927) 71 S.J. 911. Under such an order the proceedings are stayed on agreed terms to be scheduled to the order. These orders were discussed in Horizon Technologies International v Lucky Wealth Consultants Ltd [1992] 1 W.L.R. 24, PC (see also Green v Rozen [1955] 1 W.L.R. 741).

 

 

The Tomlin order has always been a useful device. Nowadays, under the case management system introduced by the CPR, more cases conclude with such an order.

Where proceedings are to be disposed by an order in Tomlin form, the order should read:

"The claimant and the defendant having agreed to the terms set out in the schedule hereto, 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."

In para.9.15 of the Chancery Guide it is explained that, if the order refers to a confidential schedule or agreement, that document must be filed with a request that it should be retained on the court file in a sealed envelop prominently marked as not open to inspection without the court's permission (see Vol.2, para.1A–94).

 

 

It is important to remember that the terms in the schedule are not part of the order as such. The terms in the schedule cannot be directly enforced as an order of the court. Thus there is no money judgment to be enforced and it does not carry statutory interest under Judgments Act 1838 s.17.

A provision seeking detailed assessment of a party's costs must be in the body of the order, not in the schedule, otherwise the costs judge will not be able to carry out the assessment (Horizon Technologies International Ltd v Lucky Wealth Consultants Ltd, op cit.).

Essentially, a Tomlin Order records terms of settlement agreed between the parties but those terms are not ordered by the court and are not enforceable as a judgment, at least not without a further order.

 

 

The terms contained in the schedule are not something for approval by a judge. The judge will, however, approve the order itself. The only orders which the court usually makes are:

(i) That the proceedings be stayed to enable the agreed terms to be put into effect.

(ii) That, if the agreed terms require it, there be payment out of monies paid into court and provision for accrued interest thereon.

(iii) For costs to be assessed, whether between the parties or out of public funds.

 

 

 

Terms in the schedule cannot be enforced on an application to commit: an injunction or an order for specific performance must first be obtained. Hence the need for "Liberty to apply for the purpose of carrying such terms into effect".

 

 

In a Tomlin order the schedule contains a binding contract between the parties compromising their proceedings. A settlement contained in a Tomlin order must be construed as a commercial instrument. The aim of the inquiry is not to probe the real intentions of the parties but to ascertain the contextual meaning of the relevant contractual language; the inquiry is objective ( Sirius International Insurance Co (Publ) v FIR General Insurance Ltd [2004] UKHL 54; [2004] 1 W.L.R. 3251, HL, at [18] per Lord Steyn). In Community Care North East v Durham County Council [2010] EWHC 959 (QB); [2012] 1 W.L.R. 338 (Ramsey J.), where the submission that the court has a general power to vary the terms of a settlement agreement incorporated in a Tomlin order was rejected (see further para.40.6.3 below), the authorities on the application of contractual remedies to agreements contained in the schedules to such orders (e.g. rectification) were explained and applied.

 

 

Where a claimant in a personal injuries claim is pressing for a provisional damages award and an order permitting variation of the periodical payments, should the contingency arise, a Tomlin order may prove to be a useful device for settling quantum on a conditional basis. That is to say, in such an order the parties may stipulate that the agreed lump sum payable and periodical payments for future care and case management and for future loss of earnings set out in the order would be treated as provisional or variable or otherwise, dependent upon a ruling by the court as to whether a provisional damages claim and an application to vary the periodical payments were appropriate (see e.g. Kotula v EDF Energy Networks (EDN) Plc [2011] EWHC 1546 (QB), June 17, 2011, unrep. (Irwin J.)).

 

 

The effect of the terms of compromise recorded in a Tomlin order is that the defendant has irrevocably dedicated the property, the subject matter of the agreed terms, to the purposes of the compromise. The defendant would be required, if necessary by an order, for specific performance, to realise the property as agreed with the claimant. The compromise imposes an immediate trust (Anders Utkilens Rederi A/S v O/Y Lovisa Stevedoring Co A/B [1985] 2 All E.R. 669).

 

 

If the terms scheduled to a consent order are too vague the court will decline to enforce them under the "liberty to apply" provision of the order (Wilson & Whitworth Ltd v Express and Independent Newspapers Ltd [1969] 1 W.L.R. 197). Where the scheduled terms are clear an order to give effect to them can be obtained under the "liberty to apply" provision 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 (EF Phillips & Sons v Clarke [1970] Ch. 322). Indeed one of the advantages of a Tomlin order is that the parties can include in the schedule provisions which could not have been ordered by the court and which go beyond the limitations of the dispute itself.

 

 

If it is intended to embody terms of settlement which can be enforced as an order the terms need to be in the order itself (not the schedule) and set out clearly. Such an order should not include provision for a stay of the proceedings as there would be no point to such a stay.

 

 

 

Where a settlement agreement is embodied in the form of a Tomlin order, but the schedule thereto is disclosed to the judge approving the order, the terms of the agreement will form part of the order (see, e.g. Zurich Insurance Co Plc v Hayward [2011] EWCA Civ 641, May 27, 2011, unrep., CA, (where held that, in the circumstances, a consent order concluding a personal injury claim, in which the defendant had pleaded that the claimant's injuries were exaggerated, did not operate as an estoppel, and the defendant's later claim against the claimant for fraud was not an abuse of process)).

 

 

A Tomlin order is not necessary where all that is required is an order that one party shall pay money to the other. The order should say "The defendant will pay to the claimant £x in full and final settlement of his claim by [date]." (Add an order for assessment of costs, if required.) The court cannot order a party to accept so the order should not say, for example, "The claimant will accept £x in full and final settlement of the claim." Similarly, the court cannot order a party to discontinue a claim: the order should say, for example "Upon the claimant discontinuing the claim and the defendant discontinuing the counterclaim, it is ordered that there be no order for costs." An order to this effect is not a Tomlin order, but a Tomlin order would not be appropriate in such a case.

Practitioners need to decide whether the case requires an order of the court or a Tomlin order with the compromised terms set out in a schedule and take care to draft the order appropriately. The current experience of the courts is that too many proposed orders are having to be returned as being neither enforceable orders nor properly drafted Tomlin orders. A properly drafted Tomlin order is very short and simple (see above). A judge is not concerned with the terms in the schedule; still less is there power to make an order in different terms (Noel v Becker [1971] 1 W.L.R. 355, CA) but, of course, practitioners should ensure that the terms are clear and should consider how the proposed terms would be enforced in the event of default.

 

 

In Wallace v Brian Gale & Associates [1998] 1 F.L.R. 1091, CA, P's action for damages for negligent survey of house was compromised under a Tomlin order by which D agreed to carry out remedial work and to pay P's "costs of this action". It was held that D's liability for costs included any subsequent costs (excluding disbursements) incurred by P for carrying the terms of the order into effect.

 

 

In Islam v Askar, The Times, October 20, 1994, CA, following agreement between P and D, county court proceedings for winding-up of their partnership were stayed by consent. P subsequently discovered that the terms of the schedule to the Tomlin order differed from the terms of agreement. It was held that the court had an inherent jurisdiction to rectify the order. In Allied Irish Bank Plc v Hughes, The Times, November 4, 1994, a Tomlin order was approved by the judge, with alterations made by him for purpose of greater clarity, and entered in court records. On application by P to enforce the order it was held that the order was not a nullity as, in the circumstances, D's consent to it in its altered form could be implied.

 

 

 

Kind regards

 

 

The Mould

[james2604]

Hi thanks The Mould, sorry haven't been on for a few days, been floored by a chest infection. Court date is Monday, struggling to determine and work out what amount I am proposing to admit and how to calculate compound interest, this unfortunately is all above my head. Also have looked into lay representation and this isn't clear, I want to represent my daughter, she will be present. I know this is at the judge's discretion, but have I read it right that the request is made with the court usher upon arrival and do you have to request this in writing or verbally. All help and advise is greatly appreciated. Thanks