Accept a Tomlin Order?

[Belas]

Hi there,

I wonder if someone could help please? I have issued a claim against my builder in the Small Claims court and I am representing myself. His Solicitor has contacted me and made me an offer which I'm happy to accept although he said he would make the application for a Tomlin Order?
Essentially, I'm not sure if I should accept a Tomlin order and does it protect me if the builder decides not to pay up? Should I suggest a different Order?

Thanks
Belas

[Amethyst]

Re: Accept a Tomlin Order?

Tomlin is really just another word for a Consent order - there are differences but people tend to use the word interchangeably.

If you had your builders solicitor draft the order it would need to be agreed (and signed) by you before it could be lodged at court, so you could get the proposed order checked out before agreeing.

It should be

Builder pays you xxxxxx by xxxxx on xxx/xxx/xxxx
If he doesn't you get judgment.
If he does you agree to discontinue the claim.


so basically if the builder agrees to pay you, then doesn't, you automatically get judgment against him and then can move to enforcement.

[Belas]

Re: Accept a Tomlin Order?

Thanks Amethyst,
Even with the inclusion of the above, my concern is how difficult it is to get enforcement? Will the court do this? I know this is easier with a consent order?

[Diana M]

Re: Accept a Tomlin Order?

Tomlin is really just another word for a Consent order - there are differences but people tend to use the word interchangeably.

If you had your builders solicitor draft the order it would need to be agreed (and signed) by you before it could be lodged at court, so you could get the proposed order checked out before agreeing.

It should be

Builder pays you xxxxxx by xxxxx on xxx/xxx/xxxx
If he doesn't you get judgment.
If he does you agree to discontinue the claim.


so basically if the builder agrees to pay you, then doesn't, you automatically get judgment against him and then can move to enforcement.

There is a big (legal) difference between a Consent Order and a Tomlin Order.

With a Tomlin Order any settlement agreed between the parties is set out in the "Schedule" which cannot be subsequently varied by the court.

With a Tomlin Order the legal proceedings are stayed (not concluded).

With a Consent Order the proceedings are concluded so the next legal step open to the Claimant would be enforcement of the Consent Order or an Application by either party to vary the Order (not easily done).

Di

[Diana M]

Re: Accept a Tomlin Order?

he said he would make the application for a Tomlin Order?
Essentially, I'm not sure if I should accept a Tomlin order and does it protect me if the builder decides not to pay up? Should I suggest a different Order?

The Defendant cannot make an Application for a Tomlin Order. That's not a legal option.

You've apparently issued a claim.

You've not said when your claim was issued (or for how much) but if the Defendant (the builder) has not filed their Acknowledgement of Service (within 19 days of the claim Issue Date) then you may be in a position to enter a Default Judgment (a CCJ).

If the Defendant has filed an AOS then they must file a Defence within 33 days of the claim a Issue Date.

What stage have these legal proceedings reached?

Di

[Diana M]

Re: Accept a Tomlin Order?

Thanks Amethyst,
. . . . my concern is how difficult it is to get enforcement? Will the court do this? I know this is easier with a consent order?

Yes it is

Di

[Diana M]

Re: Accept a Tomlin Order?

It should be
Builder pays you xxxxxx by xxxxx on xxx/xxx/xxxx
If he doesn't you get judgment.
If he does you agree to discontinue the claim..

A court cannot 'order' a claim to be discontinued so that cannot be included in any Consent or Tomlin Order which needs to be ratified by the court.

Di

[Diana M]

Re: Accept a Tomlin Order?

so basically if the builder agrees to pay you, then doesn't, you automatically get judgment against him and then can move to enforcement.

A breach of any Tomlin Order requires a 'return to court' before any judgment (CCJ) and subsequent enforcement kicks in (since the proceedings are stayed).

Di