Goosedale WEDDING VENUE REFUSING REFUND *** Settled by Tomlin Order***

[BazzaS]

I particularly admire the response to "are there any dates in the next 6 months", where he states 23/7/21-5/9/21, which is (just) outside of 6 months....... as well as "for the parties convenience" when he means "for THIS party's convenience.

 

It isn;t for your convenience!

 

I hope your DQ notes he is a business, you are self-represented ( used to be called a 'litigant in person'), and thus you invite the Court to decide the hearing should be held at the County Court nearest your home ......

[BazzaS]

He is correct, though that only a judge can order him to refund the money.

 

You can’t complain about him saying only a judge can order it: that’s what the County Courts do - adjudicate disputes. You can complain that the guidelines make it clear what the outcome will be, so his behaviour is unreasonable.

 

”That, Sir” (or Madam), “is the crux of why we are here. I suggest it is inevitable that you will find the refund must be made, and the Defendant should have seen that, but their intransigence has led to this matter reaching you”.

 

[BazzaS]

I suspect they don’t want the settlement to be public to discourage others:

a) from not using them, and

b) from being willing to go to court in similar circumstances.

 

For me, I’d take them wanting to keep it quiet;

for a) as even more reason not to use that firm not more likely I would!, and

b) as more reason to be willing to go to court : if the outcome  was so good for them they wouldn’t want it to be kept quiet.

 

Streisand effect, too. I hope lots of people find this thread ……. Did I mention Goosedale Wedding venue??

Edited July 9, 2021 by BazzaS

[BazzaS]

The court doesn’t issue a Tomlin order but merely notes it has been agreed*, in association with the claim being discontinued.

 

* There are, as ever, exceptions, such as if one of the parties doesn’t have capacity, such as the case being on behalf of a minor, where the court can order the Tomlin order must be approved by the court on the minor’s behalf.

 

So, the business gets a TO drafted.

there is the order itself, which becomes public as part of the court record.

There can be a Schedule which can be confidential (so, the public record says “the Schedule” but without giving the details!).

 

You then review the Order, and schedule, and if you and the Defendant agree, this becomes a new contract. The existing court case is stayed.

 

Your protection comes from the fact that it creates a new contract. If they breach the new contract (e.g by not paying what they said), you have a slam dunk action for breach of contract (rather than having to restart the initial court action).

 

If they provide you with an initial draft of the Tomlin Order / Consent Order (the terms can be used interchangeably) and associated Schedule that is so convoluted that you’d need legal advice to decide if you can accept it, tell them that’s what you need to do (& make them agree to pay for it!), or tell them to come up with a simpler draft Consent order.

[BazzaS]

The court shouldn’t have ordered anything yet, surely, (as you haven’t agreed the draft Tomlin Order is accepted yet, have you?)

 

Re: ‘transcript of proceedings’ : do you mean court hearing proceedings? (Have there been any in court??), or the mediator’s notes (which can’t be used in open court).

 

If the draft Tomlin Order doesn’t get agreed by both parties it shouldn’t go to the court - it’d become “mediation failed” and the stay on the case gets removed.

the TO only goes to the court once both parties agree the draft (since it is a ‘Consent order’, both parties have to consent it is acceptable!)

Edited July 10, 2021 by BazzaS

[BazzaS]

OK.

 

clarity needed : a series of yes/no answers.

 

a) Have you agreed a draft Tomlin Order?

(The wording of both the Order and Schedule must be agreed)

 

If so,

b) has it gone to the Court?

if so

c) Has the Court responded??

 

if the situation is:

a) yes, b) yes, c) yes :

d) what response has the court (not the mediator, the Court) issued?

 

If “no” to a), you can say “unfortunately agreement on the detail not reached, mediation failed, please let the case go to trial”

Edited July 10, 2021 by BazzaS

[BazzaS]

I am confused.

 

Did you agree (in front of the DJ, at the directions hearing) the terms of the Consent Order (the order and any Schedule).

If so,  has the case been dismissed, or more likely stayed as long as the TO is complied with?

 

If the latter, the company’s options are:

a) pay up, or

b) believe that the term(s) of the TO have been breached, they don’t pay,

 

and then the case should proceed to be heard (though there is the risk you lose at trial)

 

As for “is this justice” : it is.

If you agree a Consent Order, it is “just”, as you don’t have to agree. You can decline it and it go to trial (though often, even if won at trial, people don’t always get everything they want, so it doesn’t always “feel like justice”)

If it is the case that the details of the  TO needed to be finalised, and they haven’t / “now can’t”, : advise the court, and ask for the stat to be lifted.

Edited July 10, 2021 by BazzaS

[BazzaS]

See what others say, but as a way forward why not :

 

”Go back to the firm.

 

let them know that your understanding is that a Tomlin Order [TO]  (and the Court ordering a claim stayed as a result) would become part of the court record : and isn’t confidential.

 

Any Schedule to the TO can be confidential (such as the amount settled for!), and since you haven’t revealed this info : “no breach of confidence”.

 

You are a LIP, so unsurprising you need advice on the details of the TO process, getting the exact wording agreed. If they prefer you to get professional legal advice (rather than posting!) : they can pay as part of the settlement.

 

If they feel this is unfair / outside of what was agreed - let the court claim continue (& you can then bring the disputed documents to the court’s attention again)

[BazzaS]

Added for sake of clarity.

 

A schedule to a TO might include “confidentiality”, but this could mean

 

a: no disclosure of the exact details of the settlement, but there being a TO isn’t confidential or

b: no disclosure of there being a court case and there being a settlement

 

The firm seem to expect this to be b)

 

Your position should be that since the court’s judgment(s) become part of a public record, the TO itself isn’t confidential but the Schedule to a TO allows details to be confidential, that the true position is a).

 

Edited to add :

We’ve posted in parallel

 

Tell them the details re: confidentiality ( “a) or b)” ) weren’t laid out in detail.

You are happy for it to go back to the DJ, and hope they’d agree a) rather than b)

i) as you are an LiP, so can be expected to take advice, and they haven’t  offered to pay for formal legal advice, and

ii) the “matter of public record” argument that it is just the Schedule that would be confidential

Edited July 10, 2021 by BazzaS

[BazzaS]

You could point out the disagreement as to the detail of what each understands” by “confidential”

 

You can point out the “matter of public record” issue (and the TO becoming part of the court record, while the Schedule isn’t)

 

You can point out that if they disagree it’ll likely proceed to trial, and if they lose at trial they’ll have no chance of ANY confidentiality.

 

The effect of these is that it is unlikely they’ll get what they seem to want: “the fact there was a disagreement as to their obligation to refund” to disappear from public view. Thus it is in their interest to conclude it was interpretation a) and they

i) should settle the sum agreed, and

ii) That’ll remove your need to seek further

 advice (as an LiP)  on the details of the TO process.

 

I wouldn’t mention the Streisand Effect, but hopefully they’ll be aware of it

(I doubt this whole process is doing their public image any favours: Goosedale!) 

 

Then over to them. they choose to pay (whatever sum agreed, the details of which are indeed confidential!), or it goes back to court.

Edited July 10, 2021 by BazzaS

[BazzaS]

I concur with BF. 
keep good notes.

Try (where possible) to be the epitome of reasonableness.

 

 

[BazzaS]

Posted separately (so it can’t look like I’m “trying to put words in BF’s mouth”)

 

You can be seen to be reasonable without having to agree with them that you can’t ever discuss ANY aspect of the case. 

[BazzaS]

26 minutes ago, intree said:

If I have inadvertently posted anything which contravenes this please can this be removed as I am just trying to understand what a Tomlin Order is and how this has been actioned by the Court?

I doubt you have posted anything you shouldn’t.

 

Just because Goosedale might hope (in vain) that this whole thing would *magically disappear* 

a) my understanding is that posts only get removed if they breach site rules, or there is an over-riding need (& can’t see that here!, though I’m not part of the Site Team)

b) the fact there was a court case & (if the TO process succeeds) that it concluded by TO will be in the public record

c) As an LiP (& consumer, not a business), if they haven’t offered to pay for formal legal advice for you re: the TO, it isn’t unreasonable for you to seek advice here on the TO process.