If Court proceedings have started, but haven’t got as far as being determined by a Judge, it’s often the case that both parties will come to some agreement. That agreement will be put in writing, usually in a formal document, and signed by both sides. Once that agreement has been signed, it’s binding.
A Tomlin Order is one way in which the agreement can be documented and as the Order will not have been made in public a non-party cannot obtain a copy. Such an Order is used if the settlement terms are complex, the parties want to keep the terms confidential or they deal with issues which weren’t part of the court claim itself. As the Order will not be in the public domain parties are far more likely to include information, admit facts etc than they otherwise would be.
In Powles and another v Reeves and others [2016] EWCA Civ 1375, which concerned an appeal on costs, the Court of Appeal recognised that whilst a court is not generally concerned with the terms of settlement scheduled to a Tomlin order, it did not follow that a court was not entitled to look at the scheduled terms and, in appropriate circumstances, have regard to them.
This judgment will raise confidentiality concerns for parties to a Tomlin Order as it is arguable that a non party could obtain a copy of a Tomlin Order once it has been considered in open court and forms part of a judgment.
If you would liked to get into contact for more information on the items raised in this blog please contact Sally Hutchings on 020 8971 1048 or by email [email protected].