Tomlin order enforcement, what happens?

[EagleArgle]

Hi,

 

I have a Tomlin order against myself. It was "agreed" literally just before a trial in the small claims track. The court itself had lost an application I had made, despite having the receipts to confirm delivery. As a result, my witness statement was potentially ruled inadmissible.

 

I had started the claim for non-payment of an invoice for work I carried out. They put in a defence and counterclaim, which itself was late and I got a default judgement against them. They managed to get my default judgement set aside, by some fluke, even though they took two weeks to apply, didn't attempt any form of emergency filing and the court didn't receive a fee nor a form from them. They were represented from the outset and I was a litigant in person.

 

The job itself had an element of fraudulent misrepresentation to it (directors who were not directors, but were directors, the company having a parent company - used to bring us on board - that was not a parent company, claims of more work when there was none etc.). I decided not to pursue that at the time (which looking back now, was probably a mistake). Throughout the case, the other side made false declarations of truth and indeed, made evidence up long after (some 6 months after) the claims they made in their defence and counterclaim.

 

However, on the day, they then brought up a technicality and to my horror, the court had no record of my application for relief from sanction! I have the receipts form the court and they lost it! This was fatal! This led to me having no choice but to sign a Tomlin order which was very one sided, even though their counterclaim was frivolous. We had a Barrister (direct access) who, as excited as he was originally (as far as he was concerned, it was not lose-able) literally flipped on a coin and exclaimed that I really didn't have much choice. So I sort of agreed!?

 

The Tomlin schedule included confidentiality clauses and comment on opinion. Previously, I had alerted a number of people about the company and their practises and the Tomlin order required I remove those. So I did. It is all gone. Yet, they are now claiming some third party, who has never been part of the claim, the proceedings or anything else, has violated the order!?! Despite there being no relationship, no content, nothing. It is literally a random's twitter feed.

 

They are also now claiming that the content that was there, is still there. They have provided the content without a date stamp. I suspect they have kept a copy on their own hard disks locally and are reprinting PDF's of the content. Hence, they are again fabricating evidence. This is a technical point, which is the concern my barrister had at the time. His view was the judge would not understand the technical aspects of our case and thus, would rule against me. Now, I've got content to prove their fabrication. I'm not too worried about it, since as long as I can present it to the judge, I am pretty sure we'll be fine and it will expose their lies too. This time I have a solicitor and due to these spurious allegations, it may well be I am going to be subject to an enforcement order and have to go to court (incurring more losses). They have been harassing me and my solicitor for the best part of 2 weeks to boot multiple times a day.

 

I would really appreciate knowing what happens during such a hearing (indeed, I hope that we do get a hearing - I don't want them to apply "at liberty" and get an enforcement order with no notice to me).

 

The fact we had to settle on a Tomlin, without payment of our outstanding debt, under duress, given that I didn't really consent in the regular way (the court ushers got us back into the court room before I said yes) meant the original evidence, which included their initial fabrication, was never heard. This has been their game all along. Never let the evidence be seen or heard. They can claim what they like.

 

It is still on the court file and I still have a copy of the very large bundle (due to us having to rebut literally every single paragraph of their counterclaim and also rely on evidence to rebut every line of each of their witness statement, which contained what I can only describe as an organised, collective fraud).

 

They are fabricating more now and I want to make sure the judge sees it this time as we now need to realistically consider criminal charges (though I appreciate such applications to the attorney general via the court are hard to achieve). I don't use these terms with the exact legal meaning, as they of course, have not been seen by a judge yet. Despite being in black and white. There is no ambiguity! They have been vexatious litigants all the way through this.

 

Any advice will be gratefully received! What was the most obvious case, has turned into an unmitigated disaster! I am aware of case law around some evidence created long after the event in GB Holdings Ltd -v- Short [2015] EWHC 1378 (TCC) that might be applicable. Though of course, that was a much larger claim than a small claim.

 

Thanks

[obiter dictum]

I myself have a Tomlin Order with a well known DCA. In my case i am perfectly happy with it and been paying for a few years with no issues.

 

What concerns me is that when a Tomlin Oreder is breached you are of the opinion it will go back to court for an enforcement hearing. Mine states that if i miss a payment the creditor will wright to me asking to make payment or contact them if in difficulty. If i fail then they can get a CCJ automatically without going bak to court. The thing with a Tomlin Order is that you have admitted the debt and withdrawn any defence to avoid a CCJ.

 

All Tomlin Orders are different and unique to each individual with terms. It might be an idea if you can put up what your Tomlin Order states

[BazzaS]

GB Holdings Ltd v Short [2015] EWHC 1378 (TCC) appears to deal with an application for contempt of court.

 

A Tomlin order (for your case) is a form of consent order. If you didn't consent, or wanted to highlight false statements to the court, you shouldn't have signed it.

If you wanted evidence to be heard, you shouldn't have consented to the case being stayed.

 

They have 2 options regarding the alleged breach of the Tomlin order:

a) they can ask for the stay to be lifted and the original case to be heard : this (it appears) would suit you, as the evidence from the original case can be examined,

b) the Tomlin order constitutes a contract between the parties. They can bring a NEW action, alleging breach of contract. They won't have to have the stay of the original case lifted, just the case regarding their claim of breach of contract heard; this way they can avoid having the evidence from the original case re-examined.

 

I don't know how far you can go claiming duress where you were aware of the alleged fabrication prior to the consent order ; you'd be in a much stronger position had you been able to claim you agreed the consent believing their evidence to be truthful at the time, and only finding out later it was allegedly fabricated..... as you could say that the option of having the evidence heard and exposed as a fabrication wasn't available to you when you believed it to be true, rather than believing it to be false - when you should have asked for it to be heard / examined!.

 

Hayward v Zurich Insurance Company plc [2015] EWCA Civ 327 may work against you. "Parties need to take care about alleging fraud or dishonesty and understand the implications of settling. It will be difficult to reopen settled cases unless there was no knowledge of fraud at the time of settlement."

In effect the Court of Appeal said "fraud does not unravel all. It will not unravel a settlement, as in this case, where the party seeking to rescind had been alleging dishonesty from the outset."

http://www.bailii.org/ew/cases/EWCA/Civ/2015/327.html

Underwood LJ said (at 25) "parties who settle claims with their eyes wide open should not be entitled to revive them when better evidence comes along later."

 

That said, the fly in the ointment (for them, at least): the fact that they are taking action against you, rather than you against them. This may then open them up to their actions being exposed (in the same way that proprietry estoppel is a "shield, not a sword", them re-opening things, rather than you doing so, might prevent them using Hayward against you.

 

Additionally, the judgment in the Court of Appeal in Hayward was reversed on appeal by the Supreme Court!.

https://www.supremecourt.uk/cases/docs/uksc-2015-0099-judgment.pdf and

http://www.bailii.org/uk/cases/UKSC/2016/48.html

However, the final paragraph of their judgment makes a useful reference (although it is [at most!] obiter, rather than a binding ratio and they deliberately avoid making any conclusion!). Again, though, it relates more to if you wanted to re-open the case, not them!.

 

"Postscript

73. It was expressly conceded on behalf of the insurers for the purposes of the present appeal that whenever and however a legal claim is settled, a party seeking to set aside the settlement for fraud must prove the fraud by evidence which it could not have obtained by due diligence at the time of the settlement. It makes no difference to the outcome of the present case and the court heard no argument about whether the concession was correct. Any opinion on the subject would therefore be obiter, and since the court has not considered the relevant authorities (including Commonwealth authorities such as Toubia v Schwenke [2002] NSWCA 34) or academic writing, it is better to say nothing about it."

 

So, "murky waters". I suspect the initial deciding factor will depend on if they want

a) the original case to ahve its stay lifted, or

b) To have a new case for alleged breach of contract heard.

[BazzaS]

I agree that the terms of the TO are key.

See my response to the OP, above.

The claimant can either apply to the court to have the stay on the original case lifted, or can take action for breach of contract (the new contract being the Tomlin Order).

Admittedly, if they can show the Tomlin Order has been breached by the other side, then judgment in their favour is almost inevitable, and this would not be too hard to show if a payment schedule had been breached.

However, in the OP's case it seems they will be arguing someone else breached the Order, not them!.

[steampowered]

It sounds like the issue is now whether you breached the Tomlin Order. Have you breached it?

[EagleArgle]

BazzaS, that is am excellent response!

 

This is my understanding of events. Technically, if I am allowed to have any faith in the justice system, I'm OK with either a) or b). If the stay is lifted, the old evidence comes to light,

which I did argue at the time was fraudulent (it is contempt, as they signed the declaration of truth in both their defence and counterclaim and then key witness statements declaring the existence of material which they submitted and created 6 months later.

I also obtained a witness statement from a third party who was privy to that material being generated, but was innocent of it (it relates to quotations received for work they claimed the obtained quotes for as some symbolism of losses). Those quotes were generated and obtained 6 months after their counterclaim. If this is provided for examination, I am happy with that.

As for b). This is also fine, as long as I am given the chance to have my side of the story heard. We have very very robust evidence that we have not breached the Tomlin order, yet they are including material that existed prior to it's inception and indeed, formed part of their counterclaim which has been stayed.

They have not actually presented an argument. Simply yhat we have breached and included those snippets. This is purgery/contempt as well. Though of course, this is new evidence that did not exist at the time of the original claim.

This is where I am absolutely kicking myself!

I had a barrister who advised me to take the settlement. Literally dropped my case dead in front of me. As if he could do nothing. I wanted this heard! I don't know why I settled and why he told me to settle. Indeed, he advised that we could approach the points of contempt and purgery later. Since you could not get a clearer example of it.

This may still be useful. How does that work with the new fraud? Since they are alleging breaches which are not breaches but they have fabricated evidence to the effect that they are new frauds.

My eyes were not that wide open, since I was a LiP. Albeit represented on the day, the barrister had 1 day to become familiar with my case.

Yes, this is my understanding. Hence, why i ask the question now.

Exceptional references, thank you.

I don't currently intend to reopen the case. However, given their actions so far, I may very well open it if required. They are clearly abusing process on a number of fronts.

Thanks for your points. Given the complexity of the case, I'm happy if this goes into other tracks than small claims. The fact it was small claims denied us justice in the first place.

Thank you for your help so far. You seem very experienced in this, I'm very impressed!

[obiter dictum]

I have just dug up my own Tomlin Order.

This is what it states if i breach that agreement. Remember this is specific to myself and the creditor and all Tomlin Orders are different.

 

Should the Defendant default either as to the time or value of the payments, the claimant will send a letter to the defendant requiring him to pay the arrears within seven days, failing which the creditor will be at liberty to request judgement against the defendant for the sum claimed together with their costs incurred, less any payments made.

[EagleArgle]

@steampowered - No, definitely not! The question is do they have to be forced to prove it or can they basically get it or claim a breach on heresay or false evidence?

[steampowered]

@steampowered - No, definitely not! The question is do they have to be forced to prove it or can they basically get it or claim a breach on heresay or false evidence?

 

As with most civil proceedings, I imagine a case like this would be decided on a balance of probabilities. They would present their evidence (including any witness evidence); you would present your evidence; and the judge would then decide whether it is more likely than not that you breached the Tomlin order.

 

Hearsay evidence is admissible in small claims track (and is also admissible in other tracks if a hearsay notice is served). Of course it will be up to the judge to assess how strong that evidence is.

 

Evidence is evidence. If you think a particular piece of evidence is 'false', you need to explain why. This will obviously be taken into account by the judge.

 

I would suggest not spending too much time pursuing allegations of fraud, perjury, false evidence and so on. This is all a distraction. It sounds like the issue in your case is whether or not you breached the Tomlin order. Focus on that.

[EagleArgle]

As with most civil proceedings, I imagine a case like this would be decided on a balance of probabilities. They would present their evidence (including any witness evidence); you would present your evidence; and the judge would then decide whether it is more likely than not that you breached the Tomlin order.

 

Sure, indeed. The question relates more to whether they can apply and get an order without notice (which is possible and they have attempted it before) in such circumstances.

 

Evidence is evidence. If you think a particular piece of evidence is 'false', you need to explain why. This will obviously be taken into account by the judge.

 

Of course, that part isn't a concern. It's whether we get to show it to a judge in the first place.

 

Does an attempt at enforcement require notice to be given? The nightmare scenario is that a hearing is not ordered, we get no notice, the judge makes the order without one, we never hear of it and are never allowed to make our case. We then have to go through the process of appeal.

 

I would suggest not spending too much time pursuing allegations of fraud, perjury, false evidence and so on. This is all a distraction. It sounds like the issue in your case is whether or not you breached the Tomlin order. Focus on that.

 

Agreed, but that is something we will definitely look to reopen if proceedings are brought on us fraudulently. Their claim we breached is based entirely on such "evidence". That's the problem. Wasted costs, vexatious litigation, you could not get a worse type of opponent for the law to "side" with and I just want to make sure we get a fair hearing (indeed, get one at all).

[Ganymede]

Sure, indeed. The question relates more to whether they can apply and get an order without notice (which is possible and they have attempted it before) in such circumstances.

 

 

 

Of course, that part isn't a concern. It's whether we get to show it to a judge in the first place.

 

Does an attempt at enforcement require notice to be given? The nightmare scenario is that a hearing is not ordered, we get no notice, the judge makes the order without one, we never hear of it and are never allowed to make our case. We then have to go through the process of appeal.

 

 

 

Agreed, but that is something we will definitely look to reopen if proceedings are brought on us fraudulently. Their claim we breached is based entirely on such "evidence". That's the problem. Wasted costs, vexatious litigation, you could not get a worse type of opponent for the law to "side" with and I just want to make sure we get a fair hearing (indeed, get one at all).

 

 

Depends of the wording, which you've been asked to provide twice but haven't.

[EagleArgle]

Depends of the wording, which you've been asked to provide twice but haven't.

 

Ganymede - The Tomlin order has a schedule on confidentiality. I simply can't post it and risk it

[Ganymede]

Then unfortunately the advice we can give is extremely limited.

[steampowered]

I am struggling to see how they could justify applying for a 'without notice' order, as it doesn't sound like there is any real urgency for the point to be dealt with immediately, unless the Tomlin order expressly states they can apply on a without notice basis?

[BazzaS]

Ganymede - The Tomlin order has a schedule on confidentiality. I simply can't post it and risk it

 

My understanding was one of the advantages of a Tomlinson Order is that the SCHEDULE is agreed but isn't a matter of public record : it can be confidential, and isn't held openly by the court.

The ORDER itself is a document lodged with the court and isn't confidential.

 

So, my understanding is that the Order can be discussed, not the schedule. Confidential terms go into the schedule.

You should be able to disclose what is in the Order and what was filed at court (and it is for this reason the Schedule shouldn't be filed with the court and the court should refuse any confidential Schedule)

 

https://www.justice.gov.uk/downloads/courts/chancery-court/chancery-division-extending-time-limits-sealing-tomlin-orders.doc

At 4) "A correct form of Tomlin Order, which takes account of the fact that confidential schedules are no longer accepted by the court, is attached."

 

If you are absutely stuck you may need to seek advice of a lawyer (who, themselves, can be bound by confidentiality).