- Tomlin order
A Tomlin order is a
court order in the English civil justice system under which a court action is stayed, on terms which have been agreed in advance between the parties and which are included in a schedule to the order. As such, it is a form ofconsent order . The order permits either party to apply to court to enforce the terms of the order, avoiding the need to start fresh proceedings. The terms of the schedule do not form part of the court order, so may remain confidential, and can include matters outside the jurisdiction of the court or the scope of the case in hand.The order is named after the
High Court judge Mr Justice Tomlin (as he then was), from his ruling in "Dashwood v Dashwood" ( [legal citation| [1927] WN 276, 64 LJNC 431, 71 Sol Jo 911] ) delivered on1 November 1927 , that such an order kept the proceedings alive only to the extent necessary to enable a party to enforce the terms of the settlement. In that case, Tomlin J held that a provision in the order which required one party to refrain from running a business in competition with the other party could not be enforced unless and until the court made an order forspecific performance or for aninjunction . Thus, any provisions in a Tomlin order which require action by the court, such as releasing funds held in court, or an order for costs, must be included in the body of the order, not the schedule. Until a second order has been sought, it is not possible to apply to commit the party in breach forcontempt of court .The following day, Tomlin J issued "
Practice Note " [1927] WN 290, which set out a preferred form for such orders. A similar form of order appeared in theRules of the Supreme Court and appears in theCivil Procedure Rules today. The form of the schedule is settled between the parties.References
* [http://www.lawgazette.co.uk/inpractice/benchmarks/view=details.law?GAZETTEINPRACTICEID=280975 Tomlin: a guide to use and abuse] , "
Law Society Gazette ",11 May 2006 , p.28
*"Encyclopedia of Forms and Precendents ", vol.16(2) "Family", para.82
*"Halsbury's Laws of England ", Vol.37 "Practice and Procedure", para.1206
*"Civil Procedure Rules ", [http://www.dca.gov.uk/civil/procrules_fin/contents/parts/part40.htm#rule40_6 rule 40.6]
*"Practice Direction - Judgments and Orders" (2001), [http://www.dca.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part40b.htm#IDACORQD PD 40B, para.3]
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