Tomlin order ?

[Diana M]

Re: Tomlin order ?

My response to your Tomlin Order query is this post by Joanna Connolly on another thread where the OP was unsure whether to agree to the terms which had been drafted by the Claimant (Tomlin Order schedules are very much bespoke).

It explains some of the things to look out for, and although your 'Paragraphs' are different the potential pitfalls will be similar >

Anyone receiving a Tomlin Order like this should be careful. It is a Tomlin Order drafted so as to fail. The old adage if it looks too good to be true it is too good to be true springs to mind...........

Problem 1

Para 2.3 states that the payments must be made by cleared funds For a long term Tomlin Order the OP would usually (and would be well advised to) set up a standing order to ensure that the payments are not missed.

Paragraph 2.4 states that "Where the last day falls upon a weekend payment is to be received as cleared funds by no later than the last working day preceding month end." If your standing order payment date falls on a Saturday, Sunday or bank holiday the bank delays payment until the next working day.

In this case the payment falls due on 31 December 2017 which is a Sunday. The bank will pay it to PRA Group (UK) Limited on Tuesday 2 January 2018. Under the terms of the Tomlin Order the payment must be made by Friday 29 December 2017. The OP is in breach by not making payment as required and the claimant is entitled under Paragraph 4 to enter Judgment for the full amount and proceed to enforcement.

Problem 2

Another potential problem is if the claimant changes the bank account to which payments should be made and you don't receive the letter sent notifying you. Payment would be returned and the OP would be in breach of the Tomlin Order and the claimant is entitled under Paragraph 4 of the Tomlin Order to enter Judgment for the full amount and proceed to enforcement.

Problem 3

A payment term of some 1,000 years at £1.00 a month or even say 2-3 years. The £1.00 is such a small amount it would be easy to not notice if for some reason it wasn't paid by your bank or if on if the OP were to change their bank account to set it up again..

Problem 4

Should an OP die then the Tomlin Order carry's on and the Estate would need to carry on paying the £1.00 a month or the full amount will become due and payable.

Suggestions

The solution to avoid the traps is to pay say at least 12 months payments in advance (£12.00) or even longer .

For anyone already signed up to this type of Tomlin Order with this wording don't worry. Put yourself ahead on payments or if you have already missed the payment day then If PRA should seek to obtain Judgment for the full amount because you paid on a Monday instead of a Friday as payments are ongoing the Unfair Relationship provisions under s.140 of the Consumer Credit Act 1974 are still applicable.

We recently had several cases where clients who had been paying by standing order PRA Group (UK) Limited through its agent Experto Credite had proceedings issued against them because they had "breached the agreement" when Experto Credite went into liquidation.

Experto Credite's bank account was closed due to the liquidation so payments could not be accepted. No letters had been received by the clients providing alternative payment details.

Whether you should agree a Tomlin Order to settle or continue with these proceedings is your decision based on what evidence the Claimant has or hasn't produced to prove their case and your personal circumstances.

Di

[Hamish12]

Re: Tomlin order ?

Thanks Di

I understand the pitfalls as above but I am not sure whether to agree it or not. My reason is not that I agree I have this debt but that I am desperate not to get a CCJ.

Would you be good enough to confirm what evidence a court would want from them to grant a CCJ in a disputed claim. ie are banks statements and copy assignment notices enough, if they aren't I will challenge but if they are they I may have to accept this Tomlin order ?

they are not using Solicitors buit their own litigation dept.

[R0b]

Re: Tomlin order ?

A Tomlin order is essentially a contractual agreement, so the terms of the agreement is between you and the claimant. Of course you are free to negotiate the terms but this may not always be possible and will usually depend on the bargaining strength of the parties i.e. who feels they have the strongest case and what they are willing to agree and not agree to. The onus is on the claimant to prove their case in court on a balance of probabilities and back up their claims with the necessary evidence - if there is a lack of evidence then the likelihood is that they would not have satisfied the evidential burden and the case will be thrown out.

In addition to what Di has mentioned above, you could quite easily water down those terms that have been imposed on you. If it were me for example, I would add/amend the following points below to water it down a bit and make it look a bit more even.

1 The defendant will pay or cause to be paid the Claimant the sum of £4234.98 comprising 3994.82 in resoect of the balance due uner the terms of the agreement tother with the Claimants legal costs in the sum of £365 less payments received in the sum of £124.84 ( collectively referred to as the ' settlement sum ) by monthly instalments of £31.21 in the manner set out below.

As you said, they have referred to an 'agreement' but have not mentioned the date it was entered into nor the reference number or any other relevant details. I'd be questioning whether they do in fact have this information and if they don't could that be an indication that they are chancing their arm in the hope you agree to the tomlin order because it will be difficult for them to prove in court? I would also argue that their legal fees should be removed altogether - if it went to small claims they would have to pay for their own legal fees and couldn't be recovered so you could give it a shot in this case. If they feel that for the sake of a few hundred quid are they willing to go to court and possibly lose?

2. The said sum of £4234.98 shall be paid by the Defemdant to the Claimant by 12 initial instalments of £31.21 per calander month with the first payment to be made in cleared funds on or before 30th September 2017 and subsequent payments to be made on or before the 30th day each subsequent month.

I would want to be more specific and add that unless the Claimant notifies the Defendant in writing, you will pay it to a specific bank account (bank details set out in the order). This avoids any doubt but also means if the claimant changes bank account and fails to tell you, then you are not in breach of the agreement. You could go as far as specifying an email address which would also avoid any argument as to whether any notice of the change of account was given.

3. After the expiry of the intial 12 month period the Claimant will send an income and expenditure form and send to the Claimant with supporting information. The Claimant will review and agree a revised instalment with the Defendant in line with the Defendants affordability.

I would agree with Warwick, this gives them the discretion to choose whether to accept a revised instalment and that they are the judge on whether the amount is in line with your affordability. I would certain push back on this and stick to equal payments for the entire agreement - might be a longshot but worth a try. Alternatively, if no agreement can be made then an independent person will consider what is in line with affordability i.e. a debt charity.

4. In the event that the Defendant fails to make payments referred to in Para 1 or 2 of the above schedule above and or fails to comply with the requirements of Paara 3 then the Claimant shall be entitled to apply to theCourt to lift the stay of proceddings and enter judgement against the Defendant for the sum of £4234.98 less any payments received including interest and costs.

I would expand on this by saying that the claimant may only apply to lift the stay and enter judgment provided that they have written to you and given you 30 days to remedy the breach from the date of the notice - 30 days might be too long so it could be 7 or 14 days as more agreeable.

5. Provided aforesaid payments are made as schedules in Para 1 above and the Defendant complies with Para 2 the Claimant and Defendant will accept the same in full and final settlement of any and all claims they have had or may have against one another arising out of or in connection with the subject matter of these procedings.

I would remove the reference to Defendant accept in full and final settlement. This is because if you ever had a claim in connection with this agreement you can;t bring it at a later stage (for whatever reason). So it should be the claimant who accepts in full and final and all claims they may have against you.

6. The Parties agree that the contents of this order are and shall remain confidentital as between them , save only to the extent that the disclosure of its terms shall be permitted by further court order to allow the parties to take legal and / or accountancy advice upon its contents. Neither the Claimant nor the Defendant will permit their servants or agents to disclose he terms of this order to any third party.

I hate this clause and would object to it. It is not necessary, it is a small sum of money and we are not talking about 6 or 7 figure sums. It's standard practice to put it in from a commercial perspective but again, its whether they are willing to agree to remove it or instead issue proceedings against you and take a risk.

I would also suggest that the tomlin order also states that the agreement to pay the sums as set out in the Order shall not in any way be construed as an admission of liability on your part i.e. the Defendant. This just helps if you do breach the agreement and they wish to contest it at a later date - though you would need to remove the claimant's right to enter judgment against you.

The above is a very top level view of their tomlin order as to how you could water it down a bit.As already pointed out, is up to you as to whether you accept or try and push back on this and see what you can get away with. If you are going to negotiate then I would suggest you make the amendments and send the revisions back to them rather than allowing them to do it.

[unluckyjim]

very interesting