Refused payment without a signing a Tomlim Order

[Ilovebamboo]

Hi,

Hoping someone can help.

I have an ongoing small claims court claim for £1800 which relate to mortgage fees for the sale of our old house.

We instructed a conveyancing solicitor on our behalf and they paid redemption statement with the equity from The sale of our previous home. 3 months later they come asking for more money stating we didn’t pay the fees. They have been extremely aggressive with their correspondence and it’s been anxiety inducing to say the least.

I sent in a defence form, but I was finding the whole situation so stressful I offered to pay in full on a credit card. Though I truly believe I do not owe this money. They refused this payment and said I can only pay by bank transfer. They also stated that they will only accept payment if I sign a Tomlim order. They say this is the only way to close the case.

In the Tomlim order they have sent, it states I am not allowed to make a complaint to the solicitors regulation authority and ombudsman.

From what I can gather, a Tomlim order is used for monthly payments and allows the claimant to take the defendant back to court if they default on payment. I can not see how it would be needed in this case if I have offered to pay in full.

Do I have to sign the Tomlim order to get the case closed?

Can they refuse my payment by credit card?

Thanks

[R0b]

Hi

A Tomlin Order is a form of consent order used for settlement and houses terms in a separate document that the court cannot typically order. For example, a court cannot order a claimant to discontinue the claim but you might find that in a Tomlin Order. The separate document is usually a schedule so think of it as a contractual agreement and if either party breaches it, then you can go to court and enforce those terms.

So a Tomlin Order is perfectly fine for this situation but what is probably most concerning is that they are trying to prohibit you from reporting them to the SRA. They cannot and you should not agree to something like that but even if you did, I don't think it would be legally enforceable because they are trying to silence you into not reporting them to the regulator if they have committed a serious breach of conduct.

The SRA has already warned firms about this in the past but it sounds like this firm hasn't got the message. You might find the link to the SRA website which published an article around non-disclosure agreements and what firms could and couldn't do.

https://www.sra.org.uk/solicitors/gu...reements-ndas/

Obviously we do not know the full extent of the Tomlin Order but you really should insist on carving out any disclosure to a regulator something along the lines of the following:

Nothing in this Tomlin Order shall prevent the Defendant from making a disclosure to a regulator regarding any alleged misconduct, wrongdoing or serious breach of regulatory requirements, or making a disclosure to any law enforcement agency regarding an alleged criminal offence or co-operating with any law enforcement agency regarding a criminal investigation or prosecution.

If in doubt, seek legal advice and if they are refusing to accept something like the above, you may want to report them to the SRA. Whether you tell them you are doing that is up to you but it may influence them into agreeing something like the above.

[Ilovebamboo]

Thank you so much for your reply.

The Tomlin order only has 2 lines which say I am not allowed to complain. That’s it.

Do you possibly know if they can refuse my credit card payment?

And

Can they refuse my payment if I don’t sign the Tomlin order?

Thank you once again.

[atticus]

I agree: this is unacceptable, raise it with the Solicitors Regulation Authority.

[R0b]

Can they refuse my payment if I don’t sign the Tomlin order?

Yes they can but then it will depend on how reasonable they are being in refusing it based on the Tomlin Order. Assuming they amend the offending language we have discussed above to allow you report to the SRA and you are ok with the rest of it, then it sounds like there is no reason why this cannot be settled.

Obviously, if they refuse to agree to the Tomlin Order without that wording being included and it goes to a hearing, then you may have grounds to ask for a costs order against the claimant due to their legal representatives' unreasonable conduct in trying to force you to sing up to something that is almost always going to be unenforceable, not to mention a breach of the legal rep's regulatory obligations.

You can try to make a payment without their agreement but that comes with all kinds of risks and I would not suggest doing that.