Bostani & Ors v Pieper & Anor

A settlement scheduled to a Tomlin Order remains a simple contract for limitation purposes. The six-year period applies to an application to enforce a contractual entitlement arising from breach. Enforcement ordinarily requires an application in the existing proceedings, not a fresh action or amended pleadings. The relevant date is the date of the enforcement application, and successive defaults may give rise to successive enforceable rights. Clear later written agreements confirming that the Tomlin Order remains in full force may preclude reliance on an alleged earlier oral waiver or forbearance. Delay alone does not constitute abuse of process; an additional factor causing unfairness or prejudice is required.

The claim arose from a New York judgment enforcing a guarantee given by the first defendant in respect of a debt owed to the Alfred E. Mann Living Trust. The English proceedings to enforce that judgment were compromised by a Tomlin Order in March 2011. The defendants made only the first two scheduled payments.

The trustees applied to lift the stay and enter judgment under the settlement terms. The first defendant alleged an oral agreement in 2012 suspending enforcement, argued that the application was time-barred, and alleged abuse of process through delay. The central issues were whether the alleged oral agreement defeated enforcement, whether limitation applied and, if so, whether the application was in time, and whether the delay made enforcement abusive.

1. Application granted. The stay was lifted and judgment was ordered to be entered pursuant to the Tomlin Order, subject to further orders on the precise terms.
2. The defendants had failed to make the third to sixth instalments. The claimants therefore had a prima facie entitlement to judgment. In the circumstances, the relevant practical test was whether the first defendant had a real prospect both of proving the alleged oral agreement and of showing that it answered the claim. He had no such prospect.
3. The documentary evidence showed negotiations, not a concluded agreement suspending enforcement. The May 2012 and May 2013 written agreements expressly confirmed that the Freezing Order and Consent Order remained in full force, reserved all rights, and made ineffective any release, waiver, concession or forbearance. Those terms were irreconcilable with the alleged oral agreement.
4. A settlement scheduled to a Tomlin Order remains a simple contract for the purposes of the Limitation Act 1980. The six-year limitation period therefore applied to the contractual entitlement under clause 3 of the settlement terms. However, enforcement did not require fresh proceedings, amended pleadings, or an application to amend. The court was enforcing an existing order in proceedings that remained extant. The relevant date was the date on which the enforcement application was made.
5. The application made on 4 December 2018 was within six years of the final missed instalment on 7 December 2012. Each subsequent failure to pay gave rise to a further right under clause 3. The May 2013 agreement also amounted to an acknowledgment that the unpaid instalments remained due and owing.
6. Delay alone did not establish abuse of process. The continuing debt, the absence of any waiver, continuing recovery efforts in France, and the later discovery of undisclosed assets provided no basis for preventing enforcement. The application was therefore not abusive.