Phillimore v Hewson

A Tomlin order compromises a claim on its scheduled terms. A stay of the proceedings is not equivalent to discontinuance, but the claim may be revived only on proper grounds or good cause and, as between the parties, only to the extent permitted by the compromise. A court must give effect to the agreed limitation that proceedings are not to be revived except for enforcing the scheduled terms. A fresh claim cannot be used to revive allegations covered by the compromise. On appeal, the court may vary consequential parts of the order where necessary to achieve justice, even without a cross-appeal, provided the other party is not prejudiced. Costs may be reduced to reflect partial success, and the assessment need not follow a mathematical calculation based on the number of allegations struck out.

The claimant brought proceedings under section 3(1) of the Protection from Harassment Act 1997 concerning alleged publication of information about herself and her daughter. The first claim was compromised by a Tomlin order dated 25 March 2019, under which further proceedings were stayed except for carrying the scheduled terms into effect.

The claimant later issued a second claim alleging 22 further acts of harassment. The County Court struck out allegations repeating the first claim, but retained allegations T to V and lifted the stay in the first claim so that those allegations could be added to it. The defendant appealed, challenging the revival of the first claim, the procedural fairness of the order and the costs decision. The central issues were the effect of the Tomlin order and the scope of the appellate court’s power to vary the order below.

1. Appeal allowed in part. The County Court erred in reviving the first claim beyond the claimant’s right to seek enforcement of the scheduled terms. The parties’ agreement, properly construed, provided that the claim would not be resorted to thereafter except for enforcing those terms. The first claim could therefore not be revived so that all its allegations proceeded to trial.
2. The stay was not equivalent to discontinuance. It could be removed where proper grounds or good cause were shown, having regard to all the circumstances. The approach in Cooper v Williams [1963] 2 QB 567, Hollingsworth v Humphrey and Wagstaff v Colls [2003] EWCA Civ 469; [2003] C.P. Rep. 50 was applied. The wording of the order showed that revival was confined to enforcement of the compromise.
3. Allegations covered by the Tomlin order could not be revived indirectly through a fresh claim. The County Court was right to strike out those allegations as repetitive and abusive. Allegations T to V were different: they formed no part of the first claim and had not been struck out.
4. Under CPR 52.20(2), the appellate court had power to vary consequential parts of the order without a cross-appeal where that was necessary to do justice and caused no prejudice. The second claim was therefore varied so as to remain struck out except for allegations T to V.
5. The remaining grounds concerning the need for a formal application to lift the stay, procedural fairness and reasons were unnecessary to decide. The claimant already had permission under the Tomlin order to seek enforcement of its terms.
6. The County Court was entitled to reduce the defendant’s costs to reflect her partial success because allegations T to V remained. The appellate court should not adopt a mathematical approach. The 50 per cent reduction was within the judge’s discretion, but the order was varied so that the claimant paid half of the defendant’s costs below, as announced.

• High Court (Queen’s Bench Division) — On appeal from the County Court at Central London, the appeal was allowed to the extent that the first claim could not be revived beyond enforcement of the Tomlin order, and the order was varied so that allegations T to V remained in the second claim. The costs order was also varied.
• County Court at Central London — HHJ Roberts struck out most of the second claim, retained allegations T to V, lifted the stay in the first claim to permit their inclusion, and ordered the claimant to pay under half the defendant’s costs.