Tomlin orders are a form of consent order which stay the proceedings on terms that have been agreed and set out in a separate document, usually a schedule to the sealed order.
Particular provisions within the sealed order itself, which will often be very concise, are directly enforceable. These may include:-
- An order that the proceedings have been stayed on the terms agreed (except for the purpose of enforcing those terms)
- An order that the parties have permission to apply to the court to enforce the terms set out in the schedule (without the need to issue new proceedings)
The agreed terms in the schedule to the order do not form part of the wording of the order itself and, therefore, they cannot be directly enforced as an order of the court. The schedule exists as a binding contract between the parties. An application within the same proceedings would be required to enforce the agreed terms.
Any order for the payment of money or in respect of costs should appear in the order itself, and not in the schedule.
Tomlin orders are particularly useful in circumstances where:-
- The agreed terms are sensitive or confidential
- The agreed terms are too complex to be recorded in a court order
- The agreed terms are outside of the normal jurisdiction of the court or the boundaries of the claim
Court orders and judgments made in public are public records which can be obtained by non-parties to the proceedings. The use of a schedule allows the parties significantly more flexibility to record terms of settlement agreed between the parties and keep those terms confidential. However, there is some uncertainty with regards to confidentiality as recent case law suggests that the court will ultimately decide whether the schedule to a tomlin order will remain confidential.