A Tomlin Order is a court-approved way of settling a civil case in England and Wales without going to trial. It is a specific type of consent order in UK litigation, meaning an order made by the court in terms agreed by both parties.
Instead of asking the court to decide the dispute, the parties negotiate their own settlement. The court then makes an order staying (pausing) the proceedings on those terms. The claim is not dismissed but placed on hold. If either party fails to comply, the other can return to court to enforce the agreement.
A key advantage of a Tomlin Order is confidentiality. It is often used in significant commercial disputes and employment claims where the parties want to keep the settlement sum and detailed terms private.
Because the case is resolved by agreement rather than a judicial decision, no judgment on the merits is entered. As a result, a County Court Judgment (CCJ) is not normally registered when the Tomlin Order is made, helping to protect credit status and professional reputation.
Summary
- What is a Tomlin Schedule? Legal Meaning and Definition
- Key Features of a Tomlin Order
- When and Why Are Tomlin Orders Used?
- Tomlin Order Structure
- Tomlin Orders vs Standard Consent Orders
- Enforcing a Tomlin Order
- Risks and Considerations
- Key Case Law on Tomlin Orders
- Practical Tips for Lawyers and Clients
What Is a Tomlin Order in Legal Terms?
A consent order is a binding court order reflecting a voluntary agreement between the parties. Once approved, it has the same legal force as any other court order.
A Tomlin Order, or Tomlin schedule, is a particular form of consent order that stays proceedings on agreed terms rather than bringing the case to a final determination.
It has two parts: the main order which is filed at court and records that the proceedings are stayed except for the purpose of enforcing the settlement and a separate schedule which set out the detailed settlement terms and is generally not part of the public court record.
Historical Context
Tomlin Orders are named after Mr Justice Tomlin, who formalised their use in 1927 following the High Court case of Dashwood v Dashwood, a business dispute. The court approved a structure allowing proceedings to be stayed on confidential agreed terms while preserving the power to enforce them.
A practice note issued shortly afterwards set out standard wording. The approach became widely adopted because it allowed parties to settle sensitive disputes privately while retaining access to the court if the agreement was breached.
Today, Tomlin Orders remain a well-established feature of civil litigation in England and Wales, balancing confidentiality with enforceability.
Key Features of a Tomlin Order
The main features of a Tomlin Order are:
- Confidential schedule: The detailed settlement terms are set out in a separate schedule. This document is not usually part of the public court record and is not normally reviewed or approved by the court.
- Proceedings are stayed: The court case is paused rather than dismissed. Either party can apply to restore the case if enforcement of the settlement becomes necessary.
- Legally binding agreement: The terms in the schedule form a binding contract between the parties.
- Flexibility: The schedule can include terms that a court could not normally order in a final judgment, such as apologies, agreed statements, future cooperation clauses, or other commercial arrangements.
Enforceability
A Tomlin Order is a hybrid between a court order and a contract. While the schedule operates contractually, the court retains jurisdiction to enforce the settlement within the original claim.
If a party breaches the agreement, the other may apply to lift the stay to enforce the terms. Claims arising from breaches are subject to the six-year contractual limitation period, running from the date of breach.
Precise drafting is crucial. Vague or uncertain terms may be unenforceable, requiring separate proceedings.
If the Tomlin Order contains formal undertakings given to the court, breaches may, in certain circumstances, be enforced through contempt proceedings.
Unlike standard consent orders, Tomlin Orders do not automatically create a money judgment. If payment is not made, the innocent party must obtain a further court order before enforcement actions, such as instructing bailiffs, can be taken.
When and Why Are Tomlin Orders Used?
Tomlin Orders are typically used after proceedings have commenced but before trial. Common scenarios include:
- Commercial Disputes: Sensitive financial or trade information is often involved.
- Employment Disputes: Matters affecting reputations, disciplinary issues, or confidential settlements.
- Personal Injury & Clinical Negligence Claims: Particularly if confidentiality is a requirement.
- Defamation or Reputational Damage Cases: Protecting public and professional standing.
The strategic advantages of Tomlin Orders include:
- Confidentiality: Terms remain private, avoiding disclosure of sensitive information.
- Efficiency: Litigation can conclude swiftly without trial, reducing cost and delay.
- Flexibility: Parties can agree to obligations beyond what a court could enforce in judgment.
- Enforceability: Proceedings are stayed, and the court can enforce breaches without issuing a new claim.
- Protection: Avoids CCJs and public judgments, safeguarding credit rating and reputation.
Tomlin Orders are especially valuable in high-value, complex, or sensitive disputes, where parties wish to settle discreetly while retaining enforceable rights.
How is a Tomlin Order Structured?
A Tomlin Order has two main components:
1. The Public Court Order (The ‘Order’)
- Filed with the court and becomes part of the public record.
- States proceedings are stayed except to enforce the schedule.
- Typically includes a “liberty to apply” clause, allowing the parties to return to court to enforce the settlement without starting a new claim.
- May include costs provisions, such as “no order as to costs” or one party paying the other.
2. The Confidential Schedule (The ‘Schedule’)
The confidential schedule sets out the detailed settlement terms and is generally kept separate from the public court record. It operates as a binding contract between the parties and can include obligations beyond what the court could order at trial. Key aspects include:
- Substantive Terms: Specific obligations, such as payment amounts, instalment plans, or required actions.
- Scope: Terms may extend beyond the original litigation to cover additional agreements between the parties.
- Confidentiality: Protects sensitive settlement details from public disclosure while still allowing enforcement through the court if necessary.
Example Clauses
Key examples of clauses in a confidential schedule include:
- Payment sums and instalment schedules
- Confidentiality provisions
- Agreements to withdraw claims
- Non-disparagement clauses
- Specific actions, e.g., returning property or issuing an agreed statement
Differences Between Tomlin Orders and Standard Consent Orders
| Feature | Tomlin Order | Standard Consent Order |
|---|---|---|
| Confidentiality | Terms in a confidential schedule | Terms part of public record |
| Flexibility | Allows complex or non-monetary obligations | Limited to monetary or simple obligations |
| Enforcement | Requires lifting stay; limited to retained jurisdiction | Can be enforced broadly |
| Appeal | No appeal against agreed terms | Judgment may be appealed |
Standard Consent Orders are more appropriate for:
- Straightforward settlements where privacy is not a concern
- Simple debt payments requiring immediate enforcement, e.g., via court bailiffs
- Cases requiring transparency, such as disputes involving public bodies or regulatory requirements
Tomlin Orders are more suitable for:
- Sensitive settlements where confidentiality is important, e.g., trade secrets or payout amounts
- Complex agreements involving terms the court cannot usually order, such as specific non-compete clauses
- Protecting credit ratings, as a Tomlin Order prevents a formal CCJ from being registered
How to Enforce: Tomlin Order Distinctions
Enforcing a Tomlin Order after breach of the schedule involves a distinct procedure because the schedule operates as a contract, rather than as a court order in its own right. The main order stays the proceedings, but the court retains jurisdiction to lift that stay for enforcement purposes.
If a party breaches the settlement terms, the other must apply to the court to lift the stay, usually by filing an N244 application notice, often supported by a witness statement explaining the breach. Fresh proceedings are generally unnecessary where the breach can be addressed within the stayed claim.
A well-drafted Tomlin Order includes a “liberty to apply” clause, preserving the court’s power to deal with enforcement. The court has discretion when considering such applications but typically takes a pragmatic, pro-enforcement approach where the breach is clear, and the terms are sufficiently certain.
Limitations on Enforcement
Not all provisions in the schedule can be summarily enforced by lifting the stay. Straightforward payment obligations are usually enforceable directly, but more complex obligations, especially those beyond the original claim’s scope, may require separate breach of contract proceedings.
A key advantage of a Tomlin Order is that the schedule can include terms a court would not ordinarily have jurisdiction to order. If these “extra-jurisdictional” terms are breached, however, the court may be unable to compel specific performance within the stayed proceedings and may require a separate claim.
Claims are also subject to the standard six-year contractual limitation period.
Risks and Considerations
While Tomlin Orders enables a flexible and confidential court settlement, they also present practical and procedural risks.
1. Drafting and Interpretation Risks
The schedule operates as a contract and must be drafted precisely. Ambiguous or incomplete terms can lead to disputes over interpretation and enforceability. Unlike a standard court order, the court’s ability to interpret or vary any unclear contractual terms within the stayed proceedings is limited. Poor drafting can cause delays or even necessitate fresh proceedings.
2. Limits to Confidentiality
Although the settlement terms are in a confidential schedule, they are technically part of the court file. A third party may request access under the Civil Procedure Rules 5.4C, and confidentiality may be compromised if enforcement proceedings are contested. This is a confidential court settlement which is strong but not absolute.
3. Enforcement Complexity
Because the schedule is contractual rather than an operative court order, breach does not automatically constitute contempt of court. Clear payment obligations are often enforceable by lifting the stay, but complex or “extra-jurisdictional” obligations may require separate breach of contract proceedings.
4. Delay and Cost
Enforcement requires the applying party to prove breach. The process can involve extra applications, time, and costs compared with enforcing a straightforward judgment.
Key Case Law on Tomlin Orders
Three key cases illustrate how courts interpret and enforce Tomlin Orders, confirming they are a hybrid of court order and contract, and that enforceability depends on careful drafting.
Tomlin v Standard Telephones and Cables Ltd (1969)
This Court of Appeal decision established the foundation of the Tomlin Order. The court confirmed that the main order stays (pauses) proceedings, while the detailed settlement terms are in a separate schedule treated as a contract, not part of the operative court order.
Because proceedings are stayed rather than dismissed, the court retains jurisdiction to lift the stay and enforce the agreement. This case highlights the hybrid nature of a Tomlin Order: procedural in form, contractual in substance.
HXB v HXA (2010)
This case clarified that not every term in a Tomlin schedule can be automatically enforced. The High Court emphasised the importance of a “liberty to apply” clause, preserving the court’s power to handle enforcement. Even then, unclear, overly broad, or extra-jurisdictional terms may require a separate breach of contract claim.
X Ltd v Y Ltd (2013)
The High Court confirmed that schedules are interpreted using ordinary contractual principles. Clear, certain obligations, especially payment terms, can usually be enforced by lifting the stay, whereas complex or disputed terms may require fresh proceedings.
Together, these cases show courts generally adopt a pro-enforcement approach, but success depends on precision. Clear drafting enables summary enforcement; vague or expansive terms risk further litigation.
Practical Tips for Lawyers and Clients
When using a Tomlin Order, careful drafting and strategic foresight are essential to ensure the settlement is effective and enforceable.
- Use precise and unambiguous language. The schedule operates as a contract, so vague or loosely drafted terms can lead to disputes and enforcement difficulties. Payment amounts, deadlines, triggers for performance, and consequences of default should be clearly defined.
- Address confidentiality carefully. If privacy is important, include robust confidentiality clauses and specify any permitted disclosures (e.g. to regulators, insurers, or legal advisers). Parties should also recognise that confidentiality is not absolute, particularly if enforcement proceedings arise.
- Plan for breach scenarios. The schedule should clearly set out what happens in the event of non-compliance, as well as clear mechanisms for interest, costs, or reinstatement of the original claim if appropriate.
- Be mindful of enforceability. While Tomlin Orders allow flexibility, not all terms are easily enforceable through the stayed proceedings. Obligations should be drafted so they are capable of practical enforcement within the court’s retained jurisdiction.
Here to Help
Tomlin Orders offer clear strategic advantages in civil litigation. They allow parties to resolve disputes privately, flexibly, and efficiently while retaining the security of court-backed enforcement. By separating the public stay of proceedings from the confidential contractual schedule, they provide a valuable mechanism for settling sensitive or complex matters.
However, their effectiveness depends on precise drafting and careful consideration of enforceability and breach scenarios. Our expert Dispute Resolution lawyers at Witan Solicitors have extensive experience in structuring and enforcing Tomlin Orders, ensuring settlements are legally robust, practical, and tailored to client needs. For expert guidance, contact us today on 0300 303 2071 or email us.
