A TOMLIN ORDER CAN BE ENFORCED IN THE ORIGINAL ACTION
In Trebisol Sud Ouest SAS & Anor v Berkley Finance Ltd & Ors  EWHC 2494 (QB) Charles Morrison (sitting as a Deputy High Court Judge) considered the issue of whether the terms of Tomlin Order are enforceable within the original action. The judgment reiterates the point that, in most cases, the Order can be enforced within the action even if the settlement embodied in the Order itself deals with matters outside the ambit of the case.
“I am satisfied that I may enforce the terms of the Schedule embodied in the Settlement Agreement, by way of the liberty to apply provisions in the Tomlin order; and I am not concerned by the fact that the amount agreed therein may have gone beyond what might have been directly recoverable in the original action.”
The claimant sought to enforce the terms of Tomlin Order made in 2014. The judge had to consider the issue of whether a Tomlin Order could be enforced.
THE JUDGMENT ON THIS ISSUE
It is necessary to have in mind the procedural framework within which this trial has been conducted. It has taken the form of an action to enforce the terms agreed by the parties and set out in a schedule to a consent order in Tomlin form. This process of enforcing the terms agreed and scheduled to a Tomlin order was considered by Goff J (as he then was) in E. F. Phillips & Sons, Ltd. v Clarke  3 All ER ChD. In that case the agreed terms included a provision that the defendant was obliged to pay £100 (and agreed costs) to the plaintiffs as damages. The question before the court was whether the Plaintiffs were able to recover the amounts due by a motion in the original action. The central issue for Goff J was whether these sums were amounts not properly recoverable by the original action and so not recoverable by way of Tomlin enforcement. The court’s attention was invited to a number of cases in which the question of the mode of enforcing a Tomlin order has been considered, and to a statement in Daniell’s Chancery Practice , 8th ed. (1914), at p.646, which stated: “… a consent order, embodying a new agreement between the parties beyond the scope of the action, can only be enforced in a fresh suit,” for which the authority cited was In re Hearn  W.N. 103, (1913) 108 L.T. 452 & 737.
“There is no express authority that a Tomlin order can be enforced by an application in the same action. It is clearly settled by Dashwood v. Dashwood  W.N. 276 , that it cannot be enforced directly by committal proceedings; it is first necessary to obtain an order requiring the party in breach to perform his obligation under the compromise. But the question is, can such an order be obtained in the original action? In the absence of authority I would have thought it clearly could have been even where, as in the present case, a compromise goes outside the ambit of the original action – which compromises often do – because it is part of the form of order that the proceedings are not absolutely stayed but are stayed except for the purpose of carrying the terms into effect, and liberty to apply as to carrying the terms into effect is expressly reserved. In Dashwood v. Dashwood Tomlin J. himself appears to have visualised that that might be enforced either independently or in a new action.
There are strong dicta in McCallum v. Country Residences Ltd.  1 W.L.R. 657 . In that case there was not a Tomlin order. Danckwerts L.J. thought there was an implied term that the compromise should be embodied in such an order but the majority of the Court of Appeal thought otherwise. The views expressed as to the mode of enforcement are therefore in any event dicta, and in that case the compromise was not outside the ambit of the original action. But both Lord Denning M.R. and Danckwerts L.J. clearly thought that terms embodied in a Tomlin order could be enforced in the original action, and Danckwerts L.J. in particular said this, at p. 661:
“I do not think it is decisive of this matter that a compromise may result in a fresh cause of action which, if it has to be enforced, will require a writ and fresh proceedings. It seems to me that the procedure in the present case was designed to do away with further proceedings and the issue of a fresh writ. It was precisely to secure that that the Tomlin form of order was evolved.”
“”But apart from that, although that alone is a sufficient ground for dismissing this appeal, there is also this further ground – namely, that this is an attempt to enforce, not a title under the will, which alone was dealt with by the trustees’ summons, but an entirely new and independent bargain between the husband and the wife, and that could not be done in the old proceedings.”
That is not a dictum: it is expressly a ground for the decision, albeit one which the court thought unnecessary because of the strength of their first ground. That being so, in a case on all fours, it is binding upon me. But In re Hearn, in my judgment, is distinguishable from the ordinary form of Tomlin order case by the circumstance to which I have already adverted, that there was an unqualified stay and no liberty to apply, and it is also distinguishable from this particular case, and, I apprehend, from most applications to enforce a Tomlin order, in that the relief sought in In re Hearn was not mere enforcement but variation. I, therefore, distinguish it on those grounds.
That being so, in my judgment it is not an authority for the bald proposition stated in Daniell’s Chancery Practice , at p. 646, which I have read. In my judgment, provided an order is in the normally appropriate form with a qualified stay and a liberty to apply, and provided the application is strictly to enforce the terms embodied in the order and the schedule, and does not depart from the agreed terms, an order giving effect to the terms may be obtained under the liberty to apply in the original action, notwithstanding the compromise itself goes beyond the ambit of the original dispute and the provision sought to be enforced is something which could not have been enforced in the original action and which, indeed, is an obligation which did not then exist but arose for the first time under the compromise.”
So far as I am concerned, the succinct reasoning of Goff J provides ample and clear guidance to me for the purposes of the proceedings now before the court. I am satisfied that I may enforce the terms of the Schedule embodied in the Settlement Agreement, by way of the liberty to apply provisions in the Tomlin order; and I am not concerned by the fact that the amount agreed therein may have gone beyond what might have been directly recoverable in the original action.