Tomlin Order/Consent Order - Help please!

dxangel

DVLA have agreed to a tomlin order/consent order to be sent to the court regarding a CCJ from 5 years ago, where the summons was sent to a mis-typed address.

Thing is i wouldnt know how to start writing one. Can anyone help? i believe the terms are that if i (a) pay the fine and (b) dont persue dvla for costs then i DVLA will agree not to contest a set-aside. Does this mean that i have to apply seperately for a set-aside or does DVLA remove the CCJ or the court?

confused.com! please help!!!!

dxangel

hello anyone? please help!

dxangel

anyone please?

Marisco

I had to look up what this was, and I'm still not sure!!!! I'd either go to your local CAB, or have a half hour free with a solicitor, so he/she could explain it to you. Sorry I cannot be more help.

dxangel

tried CAB - they didnt know either, they recommended a local solicitor, the solicitor wanted £100 to even look at it... sent me back to CAB! im writing it myself.

stevemLS

This is quite difficult to understand.

A Tomlin Order is a method of settling litigation before it comes to trial, on terms which are agreed between the parties. So the Order itself is to stay (or pause) the proceedings without limit of time on the basis that the parties have agreed terms which are set out in the Schedule which is generally on the same page as the order.

The Schedule then sets out who has agreed to pay who what, together with any other matters (delivering goods, completing a contract, whatever).

However, the essential point is that they are made before judgment has been entered.

From what you say, the CCJ was made 5 years ago.

Equally, from what you say, the claim form was sent to the wrong address.

It is up to the claimant to prove they have served the claim correctly. If they have served it themselves they have to file a certificate of service showing how they have served and, if this is by post, the address to which it was sent. Similarly, if they asked the court to serve, they have to supply the correct (or last known) address for the defendent to the court.

Whilst I've never heard of a judgment been set aside for want of proper service so long after the event, I can't immediately think of why it shouldn't be.

So you may be able to set aside the judgment whether they agree or not if you can prove that they didn't serve the claim form correctly in the first place.

But that wouldn't need a Tomlin Order. So, I'm a bit confused to about what has gone on.

Hope that helps a little.

dxangel

stevemLS wrote: »

This is quite difficult to understand.

A Tomlin Order is a method of settling litigation before it comes to trial, on terms which are agreed between the parties. So the Order itself is to stay (or pause) the proceedings without limit of time on the basis that the parties have agreed terms which are set out in the Schedule which is generally on the same page as the order.

The Schedule then sets out who has agreed to pay who what, together with any other matters (delivering goods, completing a contract, whatever).

However, the essential point is that they are made before judgment has been entered.

From what you say, the CCJ was made 5 years ago.

Equally, from what you say, the claim form was sent to the wrong address.

It is up to the claimant to prove they have served the claim correctly. If they have served it themselves they have to file a certificate of service showing how they have served and, if this is by post, the address to which it was sent. Similarly, if they asked the court to serve, they have to supply the correct (or last known) address for the defendent to the court.

Whilst I've never heard of a judgment been set aside for want of proper service so long after the event, I can't immediately think of why it shouldn't be.

So you may be able to set aside the judgment whether they agree or not if you can prove that they didn't serve the claim form correctly in the first place.

But that wouldn't need a Tomlin Order. So, I'm a bit confused to about what has gone on.

Hope that helps a little.

I dont quite understand it myself, steve but i am SO happy to read a reply from someone who actually understands what one is!

This has been recommended to me by the prosecutor at sidmouth enforcement office. He says i should pay the fine, then fax them the tomlin order which is to state if i pay the fine they will agree to have the ccj removed from the file, tho it is STILL unclear to me who does this. Anyway, they sign it, and i send it to to court and somehow, majically, the ccj comes off. The prosecutor says this is quicker and cheaper than a set-aside.

my biggest question ( and why i havent put this into action yet ) is WHO removes the ccj? the court? the dvla? ( they say they cant ) do i sent the order to the registry trust?

the registry trust and the court that it was held at both have the mistyped address, i have confirmed that with both.

But then again, as you say a tomlin order might not do anything as 'my day in court' has been and gone 5 years ago....then a tomlin order is not going to be the right thing anyway? am i right in understanding that?

should i just pay then ask for a set aside? or not pay at all?

stevemLS

Dx

The two issues are completely different. A court will only set aside a judgment if it can be shown that there was some error made when the judgment was entered.

So, you can have a judgment set aside on the basis that you were never properly served with the claim and therefore knew nothing of the proceedings (although service on a "last known address" is generally good service so if you have moved at the relevant time that might present you with difficulties.

But the effect of setting aside a judgment is, in law, as though the judgment had never been made.

If you pay the fine, you are in effect admitting that the judgment was correctly made and so it remains a valid judgment. As I understand it, there is no way that judgment can ever be "removed" although if it is paid it can be marked "satisfied". If you pay within a month of judgment being entered it doesn't get registered so doesn't show on a credit search, although that is obviously of no use to you.

Other than challenging the judgment on the basis that it should never have been entered, I don't know of any other means of having it set aside.

The Civil Procedure Rules say that any application to set aside should be made "promptly" - my view is that you would only be able to apply if you only recently became aware of the judgment.

Again, as I understand it, the DVLA cannot have the judgment removed - as it is, it is a matter of fact and of law that the judgment was made. Only the court can order its removal, and then as I understand it it is only able to do that on determining that it should be set aside - obviously if you appealed and were successful that would also do it, but that isn't an option at this stage.

To be frank, I think the sidmouth enforcement office are talking rubbish - in summary, if you pay you are in effect acknowledging that you no longer dispute the sum owed (and you don't say what it was for) and I can't see how DVLA can then "remove" the CCJ - other than by confirming it has been satisfied, and that isn't the same as removing it.

Steve.

dxangel

thanks steve... this all makes sense. I have help off paying the fine, and i called the trgistry trust - obviously i need to speak to the court so i shall have them on attack-dial tomorrow! thanks