Rule 35: the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013/1169: Consent orders

(1) The Tribunal may, at the request of the parties but only if it considers it appropriate, make a consent order disposing of the proceedings and making such other appropriate provision as the parties have agreed.

(2) Notwithstanding any other provision of these Rules, the Tribunal need not hold a hearing before making an order under paragraph (1) or provide reasons for the order.

Another compact rule.

I imagine that “only if it considers it appropriate” refers:

• to any concerns that the Tribunal might about the process by which a party may have entered a consent order, or perhaps
• to any matters in the consent order which the Tribunal may not have jurisdiction to order. In that case, the parties may find themselves drawing up a Tomlin order, with the extra-jurisdictional matters contained in the schedule to the order.

It is otherwise a little difficult to imagine the sorts of situations where two/all parties agree on an issue, but the Tribunal declines to approve the consent order resulting from it.

Tomlin orders

The following extract, taken from the Privy Council case of Horizon Technologies International Ltd v Lucky Wealth Consultants Ltd [1992] 1 WLR 24, itself citing an extract from a textbook, is a useful description of the Tomlin order.

“The present nature and scope of the Tomlin order is fully set out in the following passage from Atkin’s Court Forms , 2nd ed. (1988), vol. 23, p. 197:

“A form of consent order commonly found in the Chancery Division … is the Tomlin order, in which the terms agreed between the parties are set out in a schedule and all further proceedings in the action are stayed except for the purpose of giving effect to the terms, for which purpose liberty to apply is given. The terms are not part of the order, and if a term is not observed by a party, application under the liberty to apply will usually be necessary to give effect to it (Dashwood v. Dashwood [1927] W.N. 276, per Tomlin J.). If by a term a party is to pay a sum of money to another party and does not carry it out, application must be made for an order for payment to enable judgment to be entered and execution to issue. It should be particularly noted that if by one of the terms a party gives an undertaking to do, or to refrain from doing, something, the undertaking is not an undertaking given to the court: it is merely an agreement between the parties. Terms scheduled to a Tomlin order represent an arrangement between the parties, and the court is not concerned with approving them although it may properly offer suggestions upon them if it appears to the court that they may cause some difficulty (Noel v Becker [1971] 1 WLR 355). The terms need not be within the ambit of the original dispute but the court will refuse to enforce terms which are too vague or insufficiently precise.”

Tomlin orders are no longer the sole preserve of the Chancery Division: they are now widely used, and are very useful mechanisms for settling disputes which go beyond a cause of action or the jurisdiction of the court or tribunal in which a case is being heard. Here is the standard wording of the order:

“The claimant and the defendant having agreed to the terms set out in the schedule hereto,

“IT IS ORDERED THAT

“1)      All further proceedings in this claim be stayed except for the purpose of carrying such terms into effect;

“2)      Liberty to apply as to carrying such terms into effect.”

Note to self: any provision which invokes the jurisdiction of the court – for example detailed assessment of costs – should be included as a third paragraph in the order itself, rather than in the schedule.