City of Westminster v Man

The judgment did not decide the substantive dispute. It held that a point was sufficiently arguable and of general importance for a limited appeal: whether a valid consent or Tomlin order, recording a compromise and staying all further proceedings, prevents enforcement of an earlier costs order which the settlement does not expressly address. If the order were binding but liable to be set aside or rectified for mistake, the earlier costs order would still not be enforceable unless and until the consent order was set aside. Permission was confined to that issue; further evidence and wider grounds were refused.

The council sued Mr Man for unpaid service charges and obtained a default judgment. That judgment was set aside on terms including payment of the judgment sum into court and a costs order, ultimately treated as payable by Mr Man to the council. The dispute proceeded in the Leasehold Valuation Tribunal, after which the parties entered into a Tomlin order providing for payment out of court of the judgment sum and staying all further proceedings. The order did not expressly address the earlier costs order.

District Judge Taylor and Judge Crawford Lindsay held that the costs order remained enforceable. Mr Man sought permission to appeal, permission to adduce further evidence, and a stay of execution. The central issue was whether the Tomlin order compromised the claim and prevented enforcement of the earlier costs order.

Lord Justice Lloyd gave the leading judgment, with Lord Justice Buxton agreeing.

1. Permission and arguability. The application raised a point with substance and general importance. The issue concerned the effect of standard terms in a Tomlin order and was arguably capable of showing that the decisions below were wrong. Permission to appeal was therefore granted on a single, specifically formulated ground. Permission was refused on all wider grounds.
2. Effect of the Tomlin order. The proposed appeal concerned whether the order of 30 September 2004 was effective both as a compromise agreement and as a court order. On its terms, it provided for one payment to the council and stayed all further proceedings. It was therefore arguable that the stay prevented enforcement of the earlier costs order, which had not been expressly dealt with in the settlement. The court did not determine that issue on its merits.
3. Possible setting aside or rectification. Even if the Tomlin order were a binding compromise subject to being set aside for mistake or rectification, the earlier costs order would not, while matters stood, be enforceable. The council could seek to set aside the consent order in separate proceedings on grounds capable of vitiating such an order. The fact that the council’s solicitors drafted the order, overlooked the costs issue, and were dealing with a litigant in person assisted by the Royal Courts of Justice Advice Bureau could be relevant to any such application.
4. Orders. Permission to adduce further evidence was refused. Execution of all sums ordered to be paid by Mr Man to the council was stayed pending determination of the appeal. A transcript was directed to be obtained at public expense. The formal order was: application granted in part.

1. Court of Appeal (Civil Division): On oral renewal, permission to appeal was granted in limited terms in [2008] EWCA Civ 532. The court also stayed execution pending determination of the appeal.
2. Central London County Court: District Judge Taylor held that the Tomlin order compromised the claim only so far as its terms provided and did not compromise the earlier costs order. Judge Crawford Lindsay dismissed the first appeal. Permission to appeal was refused on paper by Mummery LJ and then renewed orally.