Watson v Sadiq & Anor

The schedule to a Tomlin order is a binding contract. It may ordinarily be set aside only on grounds which vitiate a contract, such as fraud, misrepresentation, undue influence or duress. Procedural powers under the Civil Procedure Rules do not provide an alternative means of avoiding that agreement.

A judge may encourage settlement and allow negotiations during a trial. The judge must not pressure parties into settling to avoid deciding a difficult case. Poor trial management or excessive encouragement does not, without resulting unfairness, establish a breach of common law fairness or article 6.

A party who knows of an alleged defect but unequivocally insists upon performance of the settlement may affirm the agreement and waive the complaint. This principle applies equally to a litigant in person of full capacity.

The claimant appealed from an order made by a Recorder in Luton County Court after a four-day trial concerning financial and proprietary disputes over two properties. The order stayed the proceedings on terms scheduled to a Tomlin order and determined interest and costs. The claimant had signed the schedule while acting in person.

The claimant alleged that the Recorder’s repeated encouragement of settlement, adjournments for negotiations and involvement in resolving disputed terms had deprived him of a fair process. He argued that his consent had been vitiated by judicial pressure or duress and that the proceedings breached common law fairness and article 6(1) of the Human Rights Convention.

The central issues were whether the settlement contract or the resulting order could be set aside on the appeal, whether the Recorder’s conduct caused procedural unfairness, and whether the claimant subsequently affirmed the settlement by insisting upon its performance.

1. Appeal dismissed. McCombe LJ delivered the judgment, with which Arden and Jackson LJJ agreed. The schedule to a Tomlin order constituted a contract between the parties. It could ordinarily be set aside only upon the established grounds for avoiding a contract, including misrepresentation, fraud, undue influence or duress.

2. The procedural powers in the Civil Procedure Rules 1998 did not apply to the contractual schedule, which was not itself an order of the court. The curial part was a consent order and could in principle be varied or revoked where justice required. Nevertheless, where it reflected the parties’ bargain, that bargain was a major and often determinative consideration. Subject to any sufficient article 6 violation, the claimant therefore had to establish a contractual ground for setting aside the schedule before the whole order could be displaced.

3. The alleged contractual duress could not properly be determined in an appeal conducted entirely on documents and without examination of witnesses. Such an allegation would require a trial in fresh proceedings or the determination of an issue by the court below, potentially following an order under rule 52.10(2)(b) of the Civil Procedure Rules 1998.

4. A judge may indicate that proceedings appear suitable for compromise, inquire whether settlement has been explored and allow time for negotiations. The judge should preserve the ability to decide the case expeditiously if negotiations fail. Where parties knowingly allow the remaining trial time to expire during negotiations, however, they assume the risk of the trial being adjourned and relisted. That consequence does not itself breach common law fairness or article 6.

5. A judge’s primary function remains the just determination of cases according to law and evidence. A judge must not force parties towards a settlement contrary to their true wishes or exert pressure merely to avoid deciding a difficult or untidy case.

6. The Recorder’s conduct did not cross that boundary. The case was poorly prepared, the encouragement of compromise was in good faith, and the parties had reported an agreement in principle before the Recorder became closely involved with the remaining points. Some interventions exceeded desirable levels of encouragement and the management of the allotted time may have been poor. Those shortcomings did not cause unfairness or a violation of article 6 sufficient to undermine the claimant’s consent.

7. In any event, the claimant subsequently affirmed the agreement. Knowing the matters about which he later complained, he vigorously insisted upon performance, and the respondents paid the agreed sums in reliance upon the settlement. His conduct constituted affirmation, acquiescence and waiver. A litigant in person of full capacity is bound by agreements which he makes and by the consequences of electing to enforce them.

1. Court of Appeal (Civil Division): The claimant’s appeal was dismissed in [2013] EWCA Civ 822. The court upheld the Tomlin order and the contractual settlement in its schedule.

2. Luton County Court: On 29 March 2012 Mr Recorder Bueno QC made an order staying the proceedings on the agreed scheduled terms. He separately ordered payment of interest and 60% of the claimant’s costs. Permission to appeal was refused on paper but granted on a renewed oral application limited to duress, absence of true consent and procedural fairness.