Tomlin Orders – the secret settlement

Tomlin Orders – the secret settlement

We had a case which settled earlier this month, as they so often seem to do, ‘on the doors of the Court’ as the saying goes.  In this case, it was on the first day of what was scheduled to be a four day trial.  We hadn’t even seen the Judge, but when he was told the case had settled he was very pleased that we had freed up 4.5 days of Court time.

The settlement agreement was done by way of a Tomlin Order, which means that the mechanics of the settlement (who pays what to whom and when) remains secret and the only part which is on the public record is that the claim is suspended provided the settlement is honoured.

The party who is receiving money in settlement can say that the case was settled in their favour, but cannot give any more details except for being able to tell if certain people are part of the settlement agreement itself.

In this particular case, the defendant was extremely concerned that the settlement terms remained private, save that there was an agreed joint statement about the case which my client could show to certain people but not to others. It was absolutely forbidden that the joint statement be published in the press or other media because the defendant was concerned about the potential harm to business reputation.  We reluctantly agreed.

The settlement required that the defendant pay a sum of money by installments payable by certain dates.  If any installment was missed or late, we would be entitled to get Judgment for the remaining balance of the settlement sum.

As the defendant was so anxious to keep the settlement secret, I thought it a sure bet that the installments would be paid on time.  Judgments are a public record, so my client would be able to tell all and sundry that we had Judgment against the defendant which would indicate that my client had “won” the case, and by inference that the defendant was “guilty” of the illegal conduct alleged.  Exactly what the defendant was seeking to avoid by having the stringent do’s  and don’t in the settlement agreement.

How wrong were we!  Time for the first payment has come and gone so as soon as the Court actions my Request for Judgment my client can (if so inclined) publish it in the press and elsewhere.

What I really don’t understand is why the defendant made us spend 4 hours working out settlement terms when the benefit of the secrecy has been undone by the defendant’s failure to pay on time.  Nowt so strange as folk, I guess.  I will keep you posted how this pans out.