Zenith Logistics Services (UK) Ltd & Ors v Coury

A classic Tomlin order stays proceedings on contractual settlement terms. The scheduled terms are not an order of the court and do not require judicial approval. Referring to confidential settlement terms in the order is not, by itself, a derogation from open justice, because the terms do not record the exercise of judicial power. The position differs where the proposed order contains immediately enforceable undertakings or other coercive provisions. Such a consent order must be scrutinised for compatibility with open justice and the Convention rights engaged. Confidentiality may be granted only to the extent strictly necessary, including where disclosure would defeat the purpose of an injunction or expose genuinely confidential financial information.

Two matters were heard together. In Zenith Logistics Services (UK) Ltd v Coury, the claimants appealed against Master Davison’s refusal to approve a Tomlin order referring to a confidential settlement agreement. The Master held that the schedule formed part of the order and that open justice required disclosure unless confidentiality was justified.

In UUU v BBB, the parties sought a consent order staying harassment proceedings on terms including undertakings to the court, some of which were recorded in a confidential schedule. The central issues were the distinction between a Tomlin order and an immediately enforceable consent order, and the extent to which confidentiality was compatible with open justice.

1. Zenith appeal allowed. The Master’s decision was wrong. Asking whether a Tomlin schedule is “part of the order” without identifying the relevant context creates a false dichotomy.
2. For purposes of CPR 5.4C, the schedule is part of the court record because it forms part of a document approved, sealed and issued by the court. It is therefore ordinarily publicly accessible. In the different conceptual sense, however, the scheduled settlement terms are not directions or imperatives issued by the court. They are contractual terms between the parties.
3. In a classic Tomlin order, the operative judicial acts are the stay of proceedings and liberty to apply. The settlement terms cannot be enforced directly as an order of the court. They can be scrutinised for enforceability only if an enforcement issue later arises. A court does not approve or endorse the scheduled terms.
4. The open justice principle concerns transparency of the court’s exercise of judicial power. It does not require parties to make their private settlement agreement public or to place its detailed terms in the order. A Tomlin order referring to confidential terms may therefore be approved without inspecting the agreement, subject to the position of litigants in person and other cases outside the general rule in CPR 40.6.
5. The UUU v BBB application involved a different form of order. The proposed undertakings were immediately enforceable by committal proceedings and therefore engaged the court’s coercive powers. The order was a consent order, not a Tomlin order, and required close scrutiny. The body of the order could not properly be confidential. Confidentiality was justified for the details of the protected information and the instalment plan, because disclosure could defeat the purpose of the injunction or expose confidential financial information.
6. The revised order in UUU v BBB was approved, supplemented by amendments protecting confidential schedules. The appeal court did not need to decide the appellants’ third ground.

• High Court (Queen’s Bench Division): Master Davison refused to approve the proposed Tomlin order and gave judgment at [2020] EWHC 9 (QB). Permission to appeal was granted.
• High Court (Queen’s Bench Division): the appeal was allowed. The related application in UUU v BBB was approved in revised form.