Green v Rozen
| Jurisdiction | England & Wales |
| Date | 1955 |
| Year | 1955 |
| Court | Queen's Bench Division |
Practice - Settlement of action - Enforcement - Action settled by consent on terms indorsed on counsels' briefs - No order of court - Non-compliance by one party with terms of settlement - Jurisdiction to enforce settlement - Informal settlement of actions - Form of order - “Tomlin” order.
An action claiming the return of moneys lent was settled before trial, there being written on the front of the brief of counsel for the plaintiff “By consent, all proceedings stayed on terms indorsed on briefs. Liberty to apply” and on the back the agreed terms signed by counsel on either side whereby the defendant was to pay to the plaintiff a certain sum of money by instalments and the costs of the action, the “whole debt and costs” to become “due and payable at once” on any instalment being in arrear. When the action was called on for hearing the court was informed of the settlement and what the terms of the settlement were, but no order was made by the court. Subsequently an order for taxation was made by a master. The defendant failed to pay one of the instalments and the plaintiff applied to the court for judgment for the balance due under the terms of the settlement, an order for the costs as taxed and the costs of the application:—
Held, that judgment could not be given, for the court had made no order and the original cause of action had been superseded by the new agreement between the parties comprised in the terms of settlement, and the court had no further jurisdiction in the matter; if the terms of the new agreement were not complied with the remedy of the injured party was not by application to the court but by action upon the new agreement.
Quaere whether under the “Tomlin” form of order the terms of settlement set out in the order are enforceable by the court without a further order.
Observations upon the effect of informal settlement of actions.
APPLICATION.
On January 11, 1955, an action was called on for hearing before Slade J., when counsel then appearing for the plaintiff told the court that the action had been settled and what the agreed terms of settlement were. In the action the plaintiff had claimed against three defendants jointly for the return of moneys lent amounting to £500 and against the first defendant for a further £50. When the action was settled the terms of settlement were written on the brief of counsel for the plaintiff as follows: on the front of the brief were the words “Cor. Slade J. By consent, all proceedings stayed on terms endorsed on briefs. Liberty to either side to apply”; on the back of the brief were the agreed terms:
and those terms were signed by counsel on both sides. No order of any kind was in fact made by the court, but on May 10, 1955, the costs of the action were taxed at £68 1s. 9d. in pursuance of a master's order“By consent Dt. to pay plaintiff as follows: (1) £100 forthwith; (2) £100 20th February, 1955; (3) balance of £250 by three equal monthly instalments, the first payable on the 20th March, 1955; (4) costs to be taxed or agreed and added to the balance of £250 and paid with the third and last instalment; (5) if any instalment in arrear whole debt and costs become due and payable at once”
The defendants duly paid the first £100; the payment of £100 due on February 20, 1955, and the first two instalments of the balance, but failed to pay the third instalment or the costs. The plaintiff applied to the court for judgment for the £83 6s. 8d. (one-third of the balance of £250) which had not been paid, for an order for costs as taxed and for the costs of the application.
John Frankenburg for the plaintiff referred to the following cases: Cristel v. CristelF1; Abbott v. AbbottF2; Graves v. GravesF3; Re HearnF4; and MacCabe v. Joynt.F5
The defendants did not appear and were not represented.
SLADE J. referred to the facts as set out above and continued: Perhaps it is not surprising that I have no recollection of the...
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