Money Claim against us via CCMCC - OOC settlement agreed - Tomlin Order?

[DerekA]

Hopefully the title has grabbed the attention of those who could help and/or point me in the right direction here.

Myself and my siblings were sent a Claim Form from the County Court Money Claims Centre. It was a claim from a solicitor we had dis-instructed a year previously but who then popped up with an invoice for circa £15K a few months later. Whilst we personally believe they are are owed nothing and were prepared to defend the claim, our Legal Insurance Co has agreed to indemnify us for this and instructed a legal practice to reach a settlement. So we all filed our Acknowledgment of Service and the negotiations commenced.

A Settlement figure has now been agreed. It is not for the full amount originally claimed but close to and is nevertheless agreed. The solicitor has now proposed that we enter into a Tomlin Order and sent through a draft. Meanwhile, back at the County Court Money Claim Centre, they have advised that all they have on the claim reference is the original claim form and the acknowledgement of service. We are weeks away from it being a full year since the claim was lodged by the solicitor and the Claim Centre were/are all but about to archive it away. They have said if we have settled it out of court, all they need is a letter from the solicitor instructing the case to be closed and it will be. They said a Tomlin Order was a very heavy handed way of dealing with this.

My understanding of a Tomlin Order is it sets out a settlement procedure with the ability for the claimant to continue the claim if the settlement terms are breached. Given it is a claim for money, we have reached a settlement figure and the insurance company is ready to transfer this in full, what is the point of the Tomlin order? Surely we can draw up some sort of agreement between us and the solicitor, then have the solicitor write to the Claims Centre and instruct the claim to be closed as soon as the monies are transferred.

Why am I being fussy here? Well:
1. we don't trust the solicitor not to use the Tomlin order in some (unknown) way to have a continued threat hanging over us. He has caused all sorts of problems in other matters (our new solicitor thinks we have a genuine case to complain to the Solicitors Regulation Authority about his behaviour) and we don't want to have the claim stayed, under terms which are at his whim to be deemed broken, such that he can cause us more of an issue by having the claim re-opened, even though a settlement figure has been agreed and paid in full. (It is the sort of thing he would do just to mess us around as we would have to prove we had not broken such terms, such as not disclose the settlement to anyone - how does one prove that?)

2. We just want the claim to be closed(?) and all record of any claim expunged from any such system that exists so in the future none of us have this being able to be searched for and/or re-appearing in some fashion to affect our future personal financial arrangements

Unfortunately, the legal practice appointed by our insurance company just want, like the insurance company, to get on and wrap this up. They are not too fussed about our future records (neither of them will be around in person to clean that up if it occurred).

Can anyone give me any ideas or direction on what to do?

With thanks in advance for any thoughts, pointers, ideas or solutions.

[Amethyst]

If the solicitor who claimed against you wanted to cause problems he could have done so long before now as it seems you failed to file any defence to the claim, thus he has been entitled to ask for judgment by default from a month after the claim was filed.

The Tomlin Order should have a clause that once the agreed sum has been paid the claim will be withdrawn, rather than stayed, but yes, stayed until that amount has been paid.

But it it sounds like it's the confidentiality clause that is causing the concern ? Can you type that out in full please. Make sure there is something allowing you to disclose settlement to legal and regulators.

Also so if the sum claimed is not owed and there is a formal dispute and SRA complaint ongoing - how come you've agreed to settle rather than defend ?

[DerekA]

Thanks for replying Amethyst.

"If the solicitor who claimed against you wanted to cause problems he could have done so long before now as it seems you failed to file any defence to the claim, thus he has been entitled to ask for judgment by default from a month after the claim was filed." - Incorrect assumption I am afraid - negotiations commenced between our insurance co. and solicitor within days of receipt of claim.

"But it it sounds like it's the confidentiality clause that is causing the concern ?" - my concern is that he is using a Tomlin order when CCMCC say it is heavy handed, it appears to enable a continuing leverage over us, and I am concerned it solidifies the claim against our names. I used the confidentiality as an example of the continuing leverage. If all he wants is money and he gets it, why the continued leverage?

"Also so if the sum claimed is not owed and there is a formal dispute and SRA complaint ongoing - how come you've agreed to settle rather than defend ?" - our view is that the invoice/claim was out of order, eminently defendable and we should pay nothing. However our insurance co. stated they would deal with this and have decided to negotiate a settlement rather than defend. We disagree with them but it is their decision to negotiate. There is currently not an SRA compaint ongoing but the solicitor is knowingly meddling/leveraging this position and a separate matter (which another part of his firm is involved in) where there is clearly a conflict of interest. Our new solicitors have said lets complete the separate matter (if possible) and then go to the SRA.

The majority of what I posted originally was to set the scene. The key issue I am wrestling with is, is a Tomlin Order the only way to deal with this when the CCMCC has said it only needs a letter to say please close the case and it will effectively be erased off the system (which is what I want to happen). As far as I can see, a Tomlin order fixes the claim on the system for evermore and provides the solicitor with continuing leverage beyond simply getting his money.

I was hoping an alternative would be a confidential agreement between us and solicitor (not involving CCMCC) whereby as soon as he gets his money, he will write to CCMCC and have the case closed/erased, and that both parties agree to keep terms of settlement confidential save for disclosure to "legal and regulators" as you say.

In my view, a Tomlin Order makes this a "thing" that sticks on the record - I want it to be erased, which apparently a simple letter to CCMCC will do.

[jaguarsuk]

The majority of what I posted originally was to set the scene. The key issue I am wrestling with is, is a Tomlin Order the only way to deal with this when the CCMCC has said it only needs a letter to say please close the case and it will effectively be erased off the system (which is what I want to happen). As far as I can see, a Tomlin order fixes the claim on the system for evermore and provides the solicitor with continuing leverage beyond simply getting his money.

I was hoping an alternative would be a confidential agreement between us and solicitor (not involving CCMCC) whereby as soon as he gets his money, he will write to CCMCC and have the case closed/erased, and that both parties agree to keep terms of settlement confidential save for disclosure to "legal and regulators" as you say.

In my view, a Tomlin Order makes this a "thing" that sticks on the record - I want it to be erased, which apparently a simple letter to CCMCC will do.

CCMCC have been a little misleading, yes all it takes to discontinue a claim is the filing of a Notice, however filing that Notice does not guarantee the Claimant will be paid. Quite the opposite in fact as he would have to apply and show good reason why he wanted to resurrect it if the insurers didn't cough up.

From his position a Tomlin Order is exactly the right thing to do to settle as once sealed by the court it stays the claim and provides a method that if he is not paid that he can apply to the court for summary judgement against you as a right instead of having to seek permission to resurrect a claim.

Even if a Notice of discontinuance is entered the claim is not "erased" as it was raised in the first place and a record needs to be kept of what happened.

While you might not like the idea of a Tomlin Order it's either that or a County Court Judgement as those are the only two avenues this claim is going down. The Claimant would be a fool to enter a Notice of discontinuance.

[DerekA]

Thanks for your reply Jaguarsuk.

The point here is that the claimant solicitor is going to be paid at the point of settlement. Even if it is a day or so later, at the point he has had his money: that is it - deal done, end of. Why should there continue to be a position whereby he can resurrect the claim, as it has been 'stayed'. Surely at the point he has his money he should then advise the court the case is over, settled out of court, wipe it. Should the settlement agreement not just be a private agreement (ie: not registered with the court) betwee us and the solicitor which states if he doesn't get the money in, say, two weeks, he can pursue us with the existing claim but if he does get the money in the next two weeks, he sends a letter saying settled out of court, close the case (Notice of Discontinuance?).

That way he gets his money, the claim gets extinguished (I appreciate it wont be erased entirely) and we don't have him hovering over us (as noted previously he is the type to cause mischief and is involved indirectly through his firm in another matter with us, and has used this other matter in his negotiating with our insurance company, inferring he can interfere in it - in some respects he already has as his colleague is now sitting on files under lien).

[jaguarsuk]

Thanks for your reply Jaguarsuk.

The point here is that the claimant solicitor is going to be paid at the point of settlement. Even if it is a day or so later, at the point he has had his money: that is it - deal done, end of. Why should there continue to be a position whereby he can resurrect the claim, as it has been 'stayed'. Surely at the point he has his money he should then advise the court the case is over, settled out of court, wipe it. Should the settlement agreement not just be a private agreement (ie: not registered with the court) betwee us and the solicitor which states if he doesn't get the money in, say, two weeks, he can pursue us with the existing claim but if he does get the money in the next two weeks, he sends a letter saying settled out of court, close the case (Notice of Discontinuance?).

That way he gets his money, the claim gets extinguished (I appreciate it wont be erased entirely) and we don't have him hovering over us (as noted previously he is the type to cause mischief and is involved indirectly through his firm in another matter with us, and has used this other matter in his negotiating with our insurance company, inferring he can interfere in it - in some respects he already has as his colleague is now sitting on files under lien).

He wouldn't be able to resurrect the claim as if he did evidence of the payment would be brought to defend it and it would be dismissed, plus he'd then be stuck with a wasted costs order against him.

He's a Solicitor and so he's not going to do what seems sensible to you or I, he'll do what his training and experience has taught him; which is file things with the court. A private contract could be agreed, but that's clearly not what he wants to do and why he has proposed a Tomlin Order with your representatives.

If I were dealing with my own situation I'd be wanting a clauses in the Tomlin Order of "on settlement of the sum the Claimant consents to defendant at his own cost applying to the court to dismiss the claim" and "leave to apply." However that application would cost me £255 and that may be money the insurers just don't want to spend as when the claim becomes stayed he'd have to apply with a cost to resurrect it and they could simply challenge that application to get the claim dismissed at that point with their costs covered by an order against him. It's free to leave it stayed in perpetuity.

Eventually the court will review the stayed claim at some point (probably when they want to dispose of the paperwork) and a court officer of their own volition will likely dismiss it.

I think you are probably over thinking this "hanging over you" because he can't actually do anything with it once the money is paid unless he likes having costs orders against him and paying money back to the insurers. I would probably instruct a new firm in the other matter to prevent him meddling in that though.

[DerekA]

Thanks JaguarsUK and Amethyst for your thoughts. Following these and views of others elsewhere, we have determined that we have to go the Tomlin Order route, as uncomfortable though as we are with it's trailing terms and the suspended state of the claim. There are settlement terms we need in any agreement with this solicitor so have decided that having these locked in to this instrument outweigh our concerns as to his potential subsequent behaviour and the 'stayed' nature of the claim, rather than its permanent closure. I confess to being surprised that there is not a simple instrument that closes/removes a money claim off the record if it is fully settled out of court, rather than leave it in a 'stayed' state. Maybe had we more time, an alternative would have emerged.

With thanks to all.

[jaguarsuk]

A Tonkin Order can settle a claim and close it off. He’s obviously choosing to stay it for some perceived extra security he thinks it gives him.

If it sorts the issue and you you can move on, let him have his littl Tonkin Order. You representatives wouldn’t be advising it if there was a risk to you as ultimately they hve to fork out either way.