advice on wording of a tomlin order please
noon200
Hi, I need a bit of advice if i could please .
If a Tomlin order is to be used as a consent order must it specificaly
be worded in the first paragraph that " By consent it is ordered that
" or can it just say " it is ordered that ".
Also in the schedule must it contain a date the moneys must be paid by
or from .
Thank you greatly in advance and any help would be very appreciated .
Noon.
--
noon200
Andrew McGee
"noon200" <noon200...@legalbanter.co.uk> wrote in message
news:noon200...@legalbanter.co.uk...
'By consent' is usual, because of course it is by consent. But I do not
believe that the absence of the phrase is fatal, especially if the order is
headed 'Tomlin Order'.
If there is no date for payment of the money, how are you going to show that
the time for payment has passed? Without a date (and bearing in mind that it
is not a judgment, so the presumption of 14 days does not apply) the payment
terms may well be unenforceable.
Andrew McGee
The Todal
The usual format is
"BY CONSENT it is ordered that all further proceedings herein be stayed save
for the purpose of enforcing the terms of settlement set out in the Schedule
hereto, with liberty to apply for that purpose. [And that the Defendant pay
the Claimant his costs of the action to be assessed on the standard basis
failing agreement]
Schedule
1. The defendant do pay to the claimant within 14 days the sum of x in full
and final settlement of the claim in this action
2. The defendant do pay the claimant his costs of this action to be assessed
on the standard basis failing agreement
3. Upon payment of the above sum and costs the defendant be discharged from
all further liability to the claimant in respect of his cause of action
herein."
You can adapt it depending on which bits are applicable. As you can see, the
language is a bit archaic but there isn't always a good "plain English" way
of phrasing these things.
noon200
>
> Hi, I need a bit of advice if i could please .
> If a Tomlin order is to be used as a consent order must it
> specificaly
> be worded in the first paragraph that " By consent it is ordered
> that
> " or can it just say " it is ordered that ".
> Also in the schedule must it contain a date the moneys must be paid
> by
> or from .
> Thank you greatly in advance and any help would be very appreciated .
>
Hi, and thank you so far . Here in its entirity is an "Order" i have
the pleasure of being the defendant to which i have not paid and it is
only £300 but i'm like a mule with big heals .
The best of it is at a directional hearing the claimants applied for
costs and as my home work suggests they have to be in the "Order" to be
relevent ???
IT IS ORDERED THAT
1. Judgment , or any orderer direction , against the defendant shall
not be requested without permission from the court
2. All further proceedings in this claim be stayed except for the
purpose of carrying the terms of the schedule into effect.
3. Both parties will bear their own costs.
4. Liberty to apply
SCHEDULE TO TOMLIN ORDER
1. the defendant to pay the claimant the sum of £300, to be paid as
follows.
2. A sum of no less than £50 per month , to be credited by the last
date of each month for the duration of 6 months.
3. Payments are to be maintained by the defendant until the sum
referred to at paragraph 1 above , is paid in its entirety.
4. upon payment of the total sums reffered to at paragraph 1 above the
defendant is discharged from any further liability in respect of the
claimants claim in this action.
5. If the defendants defaults on any of the above mentioned payments ,
the whole of the outstanding sum will be payable immediately to the
claimant and the claimant will be entitled to enter judgment and take
enforcement procedures against the defendant for the outstanding sum
under the claim and detailed in the claim form
6. If the defendant defaults on any of the above , the claimant is also
at liberty to recover costs of litigation , to be assessed.
7. If any dispute arises out of this agreement the parties will attempt
to settle it by mediation before continuing any litigation , if no
legally binding settlement is reached within 28 days from a party's
notification of intention to mediate , either party may litigate.
What do you all think of that as any good ????...
--
noon200
The Todal
Seems fine to me - it obliges the defendant to pay at least 50 quid a month
and if he fails to do so, whatever sum remains becomes payable immediately
in full. If you as the defendant are happy with that, you can sign it.
Percy Picacity
news:6tme0jF...@mid.individual.net:
> "noon200" <noon200...@legalbanter.co.uk> wrote in message
> news:noon200...@legalbanter.co.uk...
>>
>>
On the face of it the order is quite favourable to the defendant in
that "both parties will bear their own costs" but what does "liberty
to apply" mean? It seems like a transcribed brief note, the meaning
of which could be quite obvious to the professionals, though it
entirely lacks clear meaning as an order in plain English. I would
worry about what sort of applications could be made under this
clause!
--
Percy Picacity
The Todal
The purpose of the Tomlin Order is to record at court the terms of a
contractual agreement between claimant and defendant without actually making
a court order requiring anyone to do anything. Liberty to Apply is the legal
phrase meaning "either side can go back to court to make further
applications if circumstances require it". In other words, to avoid the
need to start fresh court proceedings.
s.w...@groupon.com
Please can someone help. When drafting a Tomlin order, and costs have been agreed so that D will pay Ł500 towards C's costs, what is the formal phrasing required to cover that?
Thanks.
The Todal
> Thanks.
>
Upon the parties agreeing terms and by consent it is ordered that all
proceedings be stayed save for the purpose of enforcing the terms of
settlement set out in the schedule hereto, and that there be liberty to
apply for that purpose.
Schedule
1. The defendant do pay the claimant xxxx within xxxx days in full and
final settlement of his claim
2. The defendant do pay the claimant the sum of 500 pounds within xxxx
as a contribution towards the claimant's costs. Save as aforesaid there
be no order as to costs.