Consent Order/settlement agreement not approved by Judge

[NancyGru101]

I am looking for advice regarding a consent order, that was agreed & signed by myself and the claimants solicitor, whom drafted it, several weeks ago, yet the judge declined to approve it stating that it wasn't "clear". Despite me paying the agreed amounts in full, I haven't received my end of the agreement and the claimants solicitors have gone quiet.

Both parties agreed to a settlement on Monday 29th July ahead of a hearing set for 31st July, with a specific payment having been paid provided that I, defendant one of two, am removed from the Tomlin order, due to a stipulation within it preventing me from making a future claim against the claimant, which I have the intention of doing.

No reason was given as to why it wasn't clear by the judge. Since then, the claimants solicitor haven't responded to an email that I sent with me asking that we must ensure the agreed terms are adhered to & I am obviously quite worried as we have paid the amount in full yet have not received our end of the agreement.

It has been an incredibly upsetting and frustrating week, having also emailed the County court to ask for clarity on their general order in respect of the judge stating that the application be adjourned but not specifying which application, either the consent order or my original application to set aside the Tomlin order, having not received a response.

Could you please advise us on this situation. Two parties agree a settlement, the monies paid and yet the judge declines our consent order, much to the considerable benefit of the claimant, who now has the full amount of money and yet I remain on the Tomlin order under its restrictions.

We would greatly appreciate any advice, on how we should proceed or what we should do next. We feel really hard done by, given two parties settled and came to an agreement only for the judge to not approve our consent order, leaving the defendants very much worst off for it. Any help would be greatly appreciated.

I have attached both the consent agreement and the general order.

Thank you for your time.

[Pezza54]

Please read Practice Direction 40B 3.1 to 3.5
It is not surprising that the drafted consent order was not approved by the judge and sealed by the court
It has not been drafted correctly nor signed by both parties
The claimant's solicitor would have paid an application fee for the order and it is not clear why the solicitor failed to draft the consent order properly
The court has given a deadline for the consent order to be redrafted and filed after both parties have signed it
You have not signed the tomlin order so you are not bound by the conditions in the TO. You are free to start a claim against the claimant
Is there a reason why you didn't make a counterclaim when you filed your defence?
The claimant is aware you may be thinking about starting a claim - you refused to sign the TO
As the solicitor is refusing to redraft the consent order, you should write a formal letter to the solicitor confirming you made full payment on so and so date in respect of the claim, with their agreement to the claim being dropped and court proceedings ended

[NancyGru101]

Thank you for your response. Both parties did sign the consent order, specifically me and the claimants solicitor, apologies if it wasn't clear on the image I provided, due to me blocking them out. I have read those directions, I am not certain as to where any of those would be relevant here due to my lack of legal understanding, could you please explain where you believe they may be or why the order was not drafted correctly? Again, thank you for your advice and time. Regards.

[Pezza54]

A consent order is an order of the court. The co should recite the agreed terms including the financial agreement and orders that all further proceedings are stayed. Parties are entitled to apply to court to enforce agreed terms if necessary without having to commence new proceedings
A tomlin order is a contractual agreement that can remain confidential
What the solicitor drafted is similar to a Notice of Discontinuance (see form N279)

[atticus]

The Court will only make an agreed order if its terms are clear. This one is not. What is meant by removing the First Defendant from the proceedings? Is the claim against that defendant discontinued? Or dismissed? Or something else? Sort that out and present the court with an order that means something.

[NancyGru101]

Thank you both for your replies. I have already paid the agreed fee to the claimants solicitor, a considerable sum. Without their co-operation in doing another CO, I don't know how I can proceed. It has been 15 days since I emailed them and they have not responded. I should also add that I was a previous client to them since 2011 having given them considerable business. I am left with no alternative than to feel as though the claimants solicitor may have deliberately made the consent order vague/unclear knowing the judge will not be able to approve it and thus, they receive my money but do not have to obey the consent order stipulation that I am removed from the Tomlin order which would allow me to make my claim against their client.If it was an innocent mistake or even incompetence, they surely would have responded. It is so unfair, surely there is something I can do? Can I not ask for a refund or demand that we do a further consent order, I do have their signed CO and email exchange admitting to the agreement and its terms. I have approached a solicitor but unable to afford their fees regrettably. Any advice at this point is invaluable to us.

[JK2054]

Sorry but frankly it doesn't maatter about second defendant.

What was the claim for? Money? If so and you have paid it you will be fine IMO.

THe reason the solicitors arent replying is that their client has got what they want. Solicitors work what are called billable hours, and these are paid by clients for the work done by solicitors. This is normally split into 6 minute timeframes. As you have paid for the work, their client will not want to pay them anymore, as they have got their money, so their solicitor won't reply to anything to do with your case because they're not being paid.

[Pezza54]

Thank you both for your replies. I have already paid the agreed fee to the claimants solicitor, a considerable sum. Without their co-operation in doing another CO, I don't know how I can proceed. It has been 15 days since I emailed them and they have not responded. I should also add that I was a previous client to them since 2011 having given them considerable business. I am left with no alternative than to feel as though the claimants solicitor may have deliberately made the consent order vague/unclear knowing the judge will not be able to approve it and thus, they receive my money but do not have to obey the consent order stipulation that I am removed from the Tomlin order which would allow me to make my claim against their client.If it was an innocent mistake or even incompetence, they surely would have responded. It is so unfair, surely there is something I can do? Can I not ask for a refund or demand that we do a further consent order, I do have their signed CO and email exchange admitting to the agreement and its terms. I have approached a solicitor but unable to afford their fees regrettably. Any advice at this point is invaluable to us.

If you feel you have been treated unfairly you can lodge a complaint about the solicitor with the Solicitors Regulation Authority (SRA) by email (contactcentre.sra.org.uk) or complete the report form on SRA's website

[NancyGru101]

JK2054 - Thank you for your post. You state that we will be fine however my concern is that we haven't got confirmation that I will be removed from the Tomlin due to the consent order not being approved and specifically, removing the stipulation that I cannot bring a claim against the claimant, which I intend to do so. Are you saying that even without a consent order, because I have paid the amount, that I will be able to make a claim against the claimant and they will not be able to bring up the Tomlin order stipulation against me in court to have my case thrown out?

[JK2054]

did you sign/agree to the tomlin order?

[NancyGru101]

I wasn't present during the hearing due to illness. Instead, my partner did alongside defendant two. When defendant two and claimant came to an agreement, I got a very brief call from my partner who stated the amount and the deadline when to pay but she didnt tell me about the stipulation that I cannot bring a claim further. So she signed on my behalf. Defendant two is my Mother, who is in her mid 70s, she was very fearful of court and just wanted it ended, even if it meant she paid it. So I didnt immediately apply to court to set aside Tomlin, due to her asking me to give her a chance to pay the settlement. I did eventually apply to set aside the Tomlin or to remove it off of it, which is why we had a hearing set on the 31st July. The consent order was to settle out of that hearing, that we pay for the full amount remaining on the Tomlin provided that I am removed from the claim so that I am free to make a claim.

[NancyGru101]

Just to clarify what I am asking. I am not saying I am concerned about them coming to me for money, the agreement I made with them involved paying the Tomlin order amount in full, which I did. My terms were that I am removed from the Tomlin order, so that I may bring a future claim against the claimant. We have an agreement, which should have been enforceable by consent order but this order wasnt approved by judge. However, as I have the claimants agreement and discussions with their solicitor stating the agreement, as well as the signed consent order, does this mean I effectively still have the right to make a claim irrespective of the consent order? My deadline to reapply the consent order is this Friday, 6th Sep, however the claimants legals still havent responded. Don't know how to proceed.

[Pezza54]

Your question was answered 6th para post 2
It sounds as if you should give up on the consent order. The claimant's solicitor has lost interest in it

[NancyGru101]

I have wrote a formal letter, they have ignored that too. As I have their agreement, a signed consent order, in addition to discussions expressing their agreement to remove me from the tomlin, is this sufficient for me to make my claim without their client bringing up the Tomlin stipulation? It is sickening that things like this can happen. Surely the judge can do something. Do you think an appeal would be worth while? Deadline for that would be tomorrow I believe.

[JK2054]

im not sure what your appealing if the order wasnt approved...