201903.18

Enforcement of a Tomlin order is simple contract. Keep it Simples!

In the case of Bostani and others v Pieper and another [2019] EWHC 547 (Comm) (4 March 2019), the claimants (“C”) applied to enter judgment against the defendants (“D”) pursuant to the terms of a Tomlin order which provided that if D failed to make any of the payments due under the order, C was entitled to enter judgment. The order gave the parties the right to apply to court to enforce its terms without the need for a new claim, the typical phrase being “each party shall be at liberty to apply”.

Whilst D argued that the Limitation Act 1980 applied and that C was time-barred from making an application, the Commercial Court held that an application to enforce the terms of a Tomlin order and to enter judgment was an application to enforce contractual rights and therefore subject to the six year limitation period for an action founded on a simple contract.

Did you know?

Up to this point, there does not appear to have been any previous decisive authority on whether the enforcement of a Tomlin order is subject to the Limitation Act 1980 (LA 1980). As such, this authority serves to be useful clarification for litigants and litigation lawyers.

Cautionary note

Many believe that as fresh proceedings are not required to enforce terms of a Tomlin Order, that they can do so at any point. NO! Time starts to run from when the right to enforce the order arises. It is not indefinite so be sure to do your maths and not fall foul of the time requirements to enforce terms.

For further information please contact our Specialist Solicitor Priya Sejpal 020 8363 4444, priya.sejpal@curwens.co.uk