The court considered the methods of enforcing a Tomlin compromise.
Goff J stated: ‘The defendant . . is not represented, nor has he appeared in person; but counsel for the plaintiffs, has very properly drawn my attention to a number of cases in which the question of the mode of enforcing a Tomlin order has been considered, and to a statement in Daniell’s Chancery Practice (8th ed.), at p.646, which reads:- ‘a consent order, embodying a new agreement between the parties beyond the scope of the action can only be enforced in a fresh suit’ for which the authority cited is Re Hearn, De Bertodano v. Hearn (No.1) (1913) 108 LT 452, 737.
There is no express authority that a Tomlin order can be enforced by an application in the same action. It is clearly settled by Dashwood v. Dashwood [1927] WN 276, that it cannot be enforced directly by committal proceedings; it is first necessary to obtain an order requiring the party in breach to perform his obligation under the compromise. But the question is, can such an order be obtained in the original action?
In the absence of authority I would have thought it clearly could have been even where, as in the present case, a compromise goes outside the ambit of the original action, which compromises often do, because it is part of the form of order that the proceedings are not absolutely stayed but are stayed except for the purpose of carrying the terms in effect, and liberty to apply as to carrying the terms into effect is expressly reserved.
. . In Re Hearn not only did the compromise go outside the ambit of the original action but, first, no liberty to apply had been reserved at all and the stay was absolute and unqualified, and secondly, the relief sought was not a mere enforcement of the agreed terms but sought to modify them to give effect to the original intention in changed circumstances. The prime ground for the decision in the Court of Appeal was that the applicant was seeking relief against trustees outside the ambit of the compromise itself, but Sir Herbert Cozens-Hardy MR said:- ‘But apart from that, although that alone is a sufficient ground for dismissing this appeal, there is also this further ground – namely, that this is an attempt to enforce, not a title under the will, which alone was dealt with by the trustees’ summons, but an entirely new and independent bargain between the husband and the wife, and that could not be done in the old proceedings.’
That is not a dictum: it is expressly a ground for the decision, albeit one which the court thought unnecessary because of the strength of their first ground. That being so, in a case on all fours it is binding on me. But Re Hearn in my judgment is distinguishable from the ordinary form of Tomlin order case by the circumstance to which I have already adverted that there was an unqualified stay and no liberty to apply, and it is also distinguishable from this particular case, and, I apprehend, from most applications to enforce a Tomlin order, in that the relief sought in Re Hearn was not mere enforcement but variation. I therefore distinguish it on those grounds.
That being so, in my judgment it is not an authority for the bald proposition stated in Daniell’s Chancery Practice which I have read. In my judgment provided an order is in the normally appropriate form with a qualified stay and a liberty to apply, and provided the application is strictly to enforce the terms embodied in the order and the schedule, and does not depart from the agreed terms, an order giving effect to the terms may be obtained under the liberty to apply in the original action, notwithstanding the compromise itself goes beyond the ambit of the original dispute and the provision sought to be enforced is something which could not have been enforced in the original action and which, indeed, is an obligation which did not then exist but arose for the first time under the compromise.’
Goff J
[1970] Ch 322
England and Wales
Litigation Practice
Updated: 20 January 2022; Ref: scu.470603