What Is A Tomlin Order And How Is It Used To Conclude Litigation?

These orders are usually used to conclude litigation, and are a kind of consent order which includes a schedule.

Parties may wish to use a Tomlin Order instead of a standard consent order if they do not want the terms of the settlement to be included in the order, so instead they include them in a separate document (a schedule or settlement agreement).

How can a Tomlin order be enforced?

If the terms need to be enforced, then you can return to court to enforce them without having to start new proceedings.

When would a Tomlin order be used?

Tomlin orders are usually used where the terms of the agreement are complex, the agreement could not be order by a court or the terms are confidential or sensitive.

What happens if a claimant dies during a case?

If you bring a claim against someone, then sadly pass away, the right to continue with the case will usually pass to your executors or personal representatives who can, if they wish, continue with the claim. An exception to this is defamation cases, which cannot continue.

What happens if a defendant dies during a case?

If you are being sued and then sadly pass away, similarly to if a claimant dies, your executors or personal representatives will take over the case as this will then form part of dealing with your estate.

Do you need a Grant of Probate/Letters of Administration to bring a claim on behalf of an estate?

If proceedings have already been issued in the name of the claimant, then you can make an application to substitute them in the proceedings without a grant of probate/letters of administration. However, you will need grant of probate or letters of administration to obtain judgment. It is most likely that there will be a stay pending grant of probate/letters of administration to reduce any risk being taken by the executors.

If you want to bring a claim on behalf of a deceased claimant, then you will need a grant of probate/letters of administration and the claim will be brought in the name of the personal representatives.

If the defendant dies before the proceedings have been issued, then the claim form must be issued against the defendant’s personal representatives if a grant of probate/letters of administration has been issued. If the grant has not been issued, then the claim form should be issued against the estate of [deceased defendant]. The claimant must then apply for someone to be appointed to represent the estate.

If the defendant dies once the claim has been issued, then a personal representative can be substituted for the defendant. If there are no personal representatives then the court can order the appointment of someone to represent the estate.How can I make a claim against someone who lacks capacity?

If you have doubts as to someone’s capacity, the court may refuse to issue a judgment without further information. Firstly, steps should be taken to gather information from the defendant/the defendant’s solicitors and/or request medical evidence. If they refuse to provide information, an application to the court may be necessary for directions.

If the defendant does not have capacity, then they will need a litigation friend, this is someone appointed by the court to act on their behalf. Anything decided or any steps taken in the litigation process against an incapacitated person without a litigation friend, will have no effect.

How can I bring a claim on behalf of someone who lacks capacity?

Yes, again you will need to be appointed as litigation friend by the court to be able to act on behalf of an incapacitated person.

Can you sue a child?

The simple answer is yes. The child will need a litigation friend to act on their behalf throughout proceedings (this can be a parent).

It will depend on the claim and the age of the child. Very young children are very unlikely to be held liable for their actions as they won’t be able to understand the consequences of their actions. The courts will take a very subjective approach to decide whether a child should be held liable.

However, it is important to note that a child cannot be legally responsible for a debt until 18 years old.

Parents/Carers are not automatically liable for any loss or damage caused by their child/children. If a parent was negligent, for example allowing a child to cause harm/injury/loss and failing to prevent it then the parent/carer could be held liable. It would have to be shown that the parent acted negligently though and this could be a very difficult thing to show, depending on the age of the child.