The appellant and defendant said that the agreement compromising their action, and embodied within a Tomlin schedule, had been reached by duress and was vitiated. He said that the Recorder had exercised undue influence in advising the need for a settlement by compromise, and had ventured into discussing the terms of what had been without prejudice discussions, prejudicing the defendant’s right to a fair trial.
Held: The appeal failed: ‘It is well within a judge’s function to indicate a view that an action before him seems to be of a nature that ought sensibly to be compromised and he can make enquiries as to whether avenues for settlement have been fully explored. If it emerges settlement might be possible, he may also afford to parties time out of court at any stage of the proceedings, if it seems to him right, to enable possibilities of compromise to be explored. He should, however, try to ensure, both in the interests of the parties and of other litigants waiting for cases to be heard, that indulgences to the parties to try to settle do not disable him from proceeding to deal with the case and decide it expeditiously if compromise should prove to be impossible. However, if it is apparent that parties are aware that available trial time is slipping away during their negotiations, making a conclusion of a contested trial impossible if settlement negotiations break down, then that is a risk that they run. The court is not to be criticised if parties allow such a situation to develop. The trial can be re-fixed for hearing at another time. There is no breach of the common law or Article 6.’
. . And ‘the terms of the schedule to an order in Tomlin form amount to a contract between the parties. The customary basis upon which such a contract, compromising litigation, can be set aside are those upon which any ordinary contract can be set aside, i.e. for misrepresentation, fraud, undue influence, duress and the like. It seems to me that there is little, if any room, for such an order to be upset by resort to procedural provisions of the Civil Procedure Rules: as their name indicates, the rules deal with procedure and not with substantive rights and obligations arising under contracts.’ However, ‘A different principle applies to the curial part of the order. The curial part of a Tomlin order is a consent order.’
Arden, Jackson, McCombe LJJ
[2013] EWCA Civ 822
Bailii
European Convention on Human Rights 6
England and Wales
Citing:
Cited – Jones v National Coal Board CA 17-Apr-1957
The judicial function of dealing with cases justly in an adversarial system requires a first instance judge ‘to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large.’ That . .
Cited – Henly v Lyme Corporation 1828
The plaintiff owned property by the sea. It was swamped by the tide because the corporation, who had been granted land by the Crown subject to a condition that it maintain the sea-defences of the cob, had ‘wrongfully and unjustly intending to . .
Cited – Henley v The Mayor And Corporation Of Lyme Regis HL 27-Jun-1829
Where a verdict was taken by consent on two counts, the Court, on the application of the Plaintiff, amended the postea, by entering the verdict on one, (to which the evidence applied,) though the Judge who presided at the trial declined to interfere . .
Cited – Henley v The Mayor And Corporation Of Lyme Regis HL 27-Jun-1829
Where a verdict was taken by consent on two counts, the Court, on the application of the Plaintiff, amended the postea, by entering the verdict on one, (to which the evidence applied,) though the Judge who presided at the trial declined to interfere . .
Cited – Ropac Ltd v Inntrepreneur Pub Co and Another ChD 7-Jun-2000
There had been a consent order in the terms of an unless order giving the landlord an order for possession unless the tenant paid sums by a certain date, time being of the essence. The order was not complied with and the tenant applied for a . .
Cited – Ormes v Beadel 7-Nov-1860
. .
Cited – Weston v Dayman CA 7-Jun-2006
The Court considered the interpretation of a consent order on an application to vary its terms. The terms were incorporated within a consent order. It was argued that the variation could be based on CPR 3.1(7) which provides that the Court has power . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Human Rights
Updated: 01 November 2021; Ref: scu.512394