A Tomlin Order is a type of Order used to stay a claim. The Tomlin Order is negotiated and agreed by the parties and the terms of the Order are included in a schedule.

If either party does not comply with the terms of the Order, they have the right to make an application to the Court to enforce it. The terms set out in the negotiations and included in the schedule to the Order will remain confidential and will not be able to be accessed by other parties. Within the Order is usually a term stating that both parties agree to keep the terms of the Order confidential with the exception of the legal advisors or any other specified third parties.

Tomlin Orders originated from a decision made by High Court judge Mr Justice Tomlin in the case of Dashwood v Dashwood [1927]. Justice Tomlin envisaged that the Order would keep the proceedings alive for the sole purpose of one of the parties enforcing the terms against the other in the case of non-compliance.

Justice Tomlin was so happy with his new invented Order that he released a practice direction the next day which laid out the form these new Tomlin Orders are to take.

 1. Contractual ?

Ok. Admit it. Who of you reading this, still believes that offers made, can be superseded, and that a counter-offer constitutes a rejection of an earlier offer, reflecting contractual law?

If you still think this way, you would be wrong.

Part 36 is a self-contained code, which provides a structured way to settle proceedings with costs consequences if the offer is beaten, or not beaten.

The main ingredient is that there has to be an offer to pay the other side’s costs or else, it will not fulfill the requirements of Part 36 of the Civil Procedure Rules, and will not be an offer made under Part 36.

See Gibbons v Manchester City Council; LG Blower Specialist Bricklayer Ltd v Reeves [2010] EWCA Civ 726: ‘…Part 36 does not provide that only one offer may be available for acceptance at any time, nor does it provide that a later offer should be treated as revoking or varying a previous offer…’.

2. Offer to lapse after a specific period of time?

A Part 36 offer cannot state that it will be treated as withdrawn if not accepted. It is likely that any such condition may render the offer not to be an offer strictly under Part 36. However, the Court always has a general discretion to have to regard to all of the circumstances.

 In C v D [2011] EWCA Civ 646, the Court of Appeal considered Part 36 offers generally, and the mechanism. They considered the effects of the words ‘open for 21 days’.

 Part 36 does not exclude time limited offers, but the spirit of Part 36 is that it remains on the table for the Court to consider whether it was reasonable or not.

 It can remain open for 21 days, but if you wish to withdraw such an offer, before 21 days expires, it cannot be elected voluntarily, but rather one must apply formally to Court under rule 36.3(5) for permission.

 Other rules are of course in place for time limits and acceptance when a Trial has already commenced.

 The main reason an offer should not be withdrawn is so as to allow the Courts when deciding costs, to have regard to all of the circumstances under Rule 44.5(3)(a)(ii).

 3. What is meant by ‘more advantageous’?

The case of Carver v BAA plc [2008] EWCA Civ 412 explored what was meant by more advantageous for money and non-money claims.

 Rather than to provide some discretion, that ruling caused uncertainty as to what Courts would deem more or less advantageous. Indeed, Carver met with disapproval in Gibbon [2010].

 The new Part 36.14 (1A), which came into force after 1st October 2011, seeks to create more certainty by defining ‘more advantageous’ as ‘better in money terms by ANY amount, however small.

 It seems in the absence of guidance as to what is meant by more advantageous in non-money cases, that we have to rely upon Carver. Supposedly one must ask the hypothetical question with hindsight, ‘Was it worth it?’ ‘Was it worth the fight?’

What advisers do I need ?

Legal advice should be sought at the outset of a proposed transaction. Ideally you would not even enter into any sort of negotiations without first seeking legal advice.

If you are selling your business, you will need specialist tax advice from a qualified individual in order for the structure and timing of the deal to be suited to your needs.

 What can I do to prepare for the transaction ?

If you are a seller, you should try and ensure that you have a master copy of all your customers, suppliers, contracts, key accounts, employees and any other relevant information and contracts. This will be standard for most companies, but if a seller looks to enter a transaction without this information it will make the due diligence exercise much more difficult and therefore expensive.

How can I be sure that my “trade secrets” will remain confidential? How can I ensure confidentiality ?

During a transaction it is a natural occurrence that a seller will be allowing the buyer to see information which they would normally consider confidential and commercially sensitive. A key safeguard which is to be used is the confidentiality agreement (this is sometimes called a non disclosure agreement). It is key that all sellers ensure that the buyer has signed the confidentiality agreement before they allow them to see the confidential or sensitive commercial information. If the information is allowed to be witnessed by the buyer without a confidentiality agreement being in place then it becomes very hard to protect this information at a later date.

Share sale or Asset sale ?

When a business is being run as a partnership or even by a sole trader, there are no shares to buy. This type of sale is referred to as an asset sale as the assets of the business are being sold to the buyer rather than the business itself. The assets can include for example all major contracts held, the goodwill of the business or even a list of all of the businesses customers.

If the business is owned by a company then the buyer has a choice as to whether he buys the business through an asset sale or a share sale. An asset sale would work the same way as if the business was being run by a partnership or sole trader in that the buyer would select which assets they would want to buy from the selling business. Under a share sale, the entire company would be bought from the shareholders, this includes the assets and liabilities. Generally a buyer will always want to purchase the company through an asset sale as the outstanding liabilities of the company will not be carried to the buyer.

Conversely a seller will prefer to sell his shares in the company rather than sell the assets piecemeal.

It is important to remember that if the transaction proceeds as a share sale it is the shareholders of the selling business who are the sellers, whereas, if the transaction is to proceed as an asset sale it is the company or entity itself who is the seller.

Please have in mind that certainly in English Law, and in particular under Consumer Law, the onus is upon you as the buyer to check and consider what you are purchasing. The principle in Law is ‘Caveat Emptor’, ‘Buyer Beware’.

The wording used, ‘Sold as seen’, means exactly this. If you ask questions about the item, and you receive a response, that response is a representation made by the buyer to you, the seller.

Make sure that when you send questions, that you copy those questions and answers to another email address. Such representations could be misleading, false, innocent, or fraudulent misrepresentations, which dependant upon the type of misrepresentation, lead to various remedies in Civil Law, and in Consumer Credit Law.

Example 1:
You purchase an item, but it never arrives. You try to communicate with the seller, but they either ignore you, or say something to allay your fears, and still your item does not arrive.

Example 2:
You purchase an item, but it is not as described, and instead it is a knock-off/fake/copy/counterfeit of what you thought you were purchasing.

How did this happen?

1. Did you check the location of the item? Unusual places are known for producing counterfeit goods.

2. Did you check whether the name of the seller is unusual? Ambiguous names, are sometimes indicators of a scam.

3. Check what other items are being sold by the seller. Is this a usual item being sold? Is it unusual? Just because a seller sells thousands of pairs of socks, does not mean that a Rolex placed, is genuine.

4. Check the number of items sold by the seller and over what period of time. Recommendations of less than say 10, should be considered more carefully. If trading only commenced a month ago, with thousands of items sold from scratch, is this not peculiar? Does this raise alarm bells, and if not, should it do so?

5. Check the feedback. Any negative comments made? Check the comments to see precisely what is being said. Equally, check the positive feedback to consider whether it is genuine. If hundreds of people make recommendations with similar sounding names, or from similar locations, that could also be suspicious.

6. Check carefully the decription of the goods. If it is described as ‘like’, or ‘style/d’, it would be your problem if the seller said the goods were not the genuine article.

7, Check to see whether the Ebay Seller account has ever been suspended. This may be indicative of a Seller who takes risks and sells goods, or provides an unsatisfied quality of service.

David Rosen is a Solicitor-Advocate, Partner and Head of Litigation at Darlingtons Solicitors. He is a Certified Fraud Examiner qualified with eh ACFE. He is a working member of the Fraud Advisory Panel, and a member of the London Solicitors’ Litigation Association. David Rosen is a visiting associate Professor of Law at Brunel University.

1. A Company credit card is used on a Sunday night, for a dinner for 5. Examine the receipt. Children’s meals? Family meals? This could be a misuse of Company money and expenses. It could be genuine? Check diary entries and appointments to see if anything was planned or booked. Never jump to conclusions.

2. A Company credit card is used to pay for petrol expenses. 6 receipts are submitted in one month for varying amounts. Upon checking the receipts, some are for diesel, and others are for petrol. 2 cars? Wangling expenses to pay for another car? Check the mileage of the employee. Check diary entries and appointments to see if they reconcile with places and dates of petrol purchased.

3. Taxi Invoices. Check the handwriting. Does it resemble anyone’s from your office? Are the receipts with the same logo? Are the receipts numbered, and do the numbers run consecutively? Someone may have grabbed a bundle of Receipts from one Taxi Company, in which case it is likely to be fraudulent.

4. Receipts generally. Have they been altered in any way? Check specifically for numbers changed from 1s to 4s to 7s. Check also whether there is unusual small gap where figures are added before or after the real figures. Check the wording of cheques as against the figures also shown.

5. Check for unusual refunds, and reclaims. For example, some employees charge their Companies for usual travel, and then obtain refunds, and repurchase with super-saver deals, or don’t travel at all. They then keep the refunds on the tickets.

6. Check to ensure there are no duplicate or copy invoices and receipts used by more than 1 employee. Look for similar numbers, same names in restaurants, or the absence of names cut off when submitted to mask a duplication.

How are employees deterred from such behaviour?

1.Name and Shame.
2.Adopt a zero tolerance attitude towards such illegal activities.
3. Ensure you have a written policy as to what is and is not tolerated in the workplace.
4. Carry out regular reviews of expenses and receipts. Ensure that the person who carries out checks, is different to the person who makes such entries.

David Rosen is a Solicitor-Advocate, Partner and head of Litigation at Darlingtons Solicitors. He is a Certified Fraud Examiner, qualified under the Association of Certified Fraud Examiners, Texas, a working member of the Fraud Advisory Panel, and a visiting associate Professor of Law at Brunel University.

James is an expert in auction sales, so if you are buying or selling a property at auction, please get in touch with him. remember, once you make a bid and it’s accepted, you’ve exchanged contracts and are fully committed to complete, so you need the right advice.

Taking a hammering – auctions (James Swede) PIP Dec 2011

A report in today’s Daily Telegraph suggests that the Government has a new strategy to “cyber tag” proven online criminals or those seriously harassing or bullying others online.

In principle this clearly seems a good idea, but the application of such proposals appears to be a big ask, simply in terms of resources. One of the biggest issues with the internet is also that a single Government will also find it very difficult if not impossible to enforce rules on it’s own due to the open and international nature of the net.

Bearing this in mind, the starting point for some kind of action would appear to be to try and seek or impose co-operation from some of the largest and most powerful sites and forums on the net, such as social networks. Many of these are not UK based, so again, easier said than done.

This is a very interesting development and one we will watch closely. Aspects of online and internet law are certainly becoming not only fascinating but more and more important legally.

3 things may happen:

1. Nothing whatsoever, but unlikely because your opponent will usually try and take advantage;

2. Your opponent will apply to the Courts for an Order that your case be struck out, or for an ‘Unless’ Order (I.e. That unless you provide something by a certain time, that the Court should impose a sanction upon you which includes but is not limited to, debarring evidence from being adduced, striking out part or all of your case, or an ‘Unless’ Order;

3. The Court imposing a sanction upon a Party for non-compliance with an Order.

The Court has wide powers of discretion as to whether to impose or not impose sanction in all 3 cases.

In the event of 1 above, don’t sit back and do nothing. Sooner or later the Court or your opponent will catch up with non-compliance.

In the event of 2 above, you will need to make good your non-compliance. Do not wait until the application is to be heard. Rather, act quickly. File a copy of whatever document you need to, at Court, and serve whatever document you need to do, with your opponent. Then invite your opponent to withdraw the application. You may have to pay their reasonable costs of and occasioned by your non-compliance.

In the event of 3 above, you will need to apply to the Court formally on Form N244 stating what Order you seek and reasons why.

You should do whatever you were meant to do, and at least attach that document to the application Order together with any other document relevant to explaining the delay.

The Court will have regard to all circumstances, but specifically, it has powers to grant relief from sanctions under Part 3.9 of the Civil Procedure Rules 1998.

As stated above, the general rule in English law is that damages are not easily obtainable, particularly in a commercial context, for wrongdoing. In some types of cases, such as personal injury, libel and some other types, damages may be awarded for :-

• Injured Feelings
• Damage to reputation
• Loss of opportunity
• Exemplary or Punitive Damages