A consent order and a Tomlin order both record a settlement. The difference is where the agreed terms sit. A consent order puts them in the court’s order, so each one can be enforced as an order. A Tomlin order stays the claim on terms set out in a schedule or a separate agreement, which remain a contract between the parties, with permission to apply to the court to enforce them. For costs, one rule matters above the others: in a Tomlin order, a direction for the payment and assessment of costs should be in the body of the order, not the schedule (PD 40B para 3.5).
Our free consent order and Tomlin order builder drafts either kind, with the agreed terms in the parties’ own words and the costs clause, from a fixed list of standard wordings, in the right place. This guide explains the rules behind the choices it makes.
Tomlin order or consent order: the difference
| Consent order | Tomlin order | |
|---|---|---|
| Where the terms are | In the order itself | In a schedule, or a separate agreement the order refers to; the order stays the claim |
| What the court orders | The agreed terms (Community Care North East at [25]) | The stay and the permission to apply, not the scheduled terms (Community Care North East at [25] and [26]; Zenith at [61]) |
| If a term is broken | Apply directly to enforce the order, with no further proceedings (Vanden at [47]) | Apply in the same claim under the permission to apply; the court then decides on the terms (Zenith at [61]) |
| Privacy | A non-party can generally obtain a copy of an order made in public, with or without a hearing (CPR 5.4C(1)(b)) | An attached schedule too (Zenith at [59]); an agreement referred to but not attached stays off the record (at [64] to [66]) |
| Changing it later | If the court has power to vary it, the parties’ agreement is a major and often determinative factor (Community Care North East at [27]) | The scheduled terms change only as a contract can, for example by rectification (Community Care North East at [28] and [34] to [36]) |
| Costs | The costs clause is part of the order | Any direction for the payment and assessment of costs goes in the body, not the schedule (PD 40B para 3.5) |
Calling an order a Tomlin order does not make it one. In Vanden Recycling Ltd v Kras Recycling BV [2017] EWCA Civ 354 the order stayed the proceedings except for the purpose of enforcing the settlement, but because the settlement terms were part of the court’s order, it was a consent order, not a Tomlin order (at [47] and [48]). Its order for payment was treated as a judgment, so satisfying it barred a claim against another party liable for the same damage (at [49] and [50]). In Zenith, a draft order containing undertakings to the court, which could be enforced by committal without any preliminary application, and no permission to apply, was a consent order, not a Tomlin order (Zenith Logistics Services (UK) Ltd v Coury [2020] EWHC 774 (QB) at [70]).
What a consent order needs
CPR 40.6 applies where all the parties agree the terms of a judgment or order. The order must be drawn up in the terms agreed, be expressed as being “By Consent”, and be signed by the legal representative acting for each party to whom it relates or, where it goes to a judge, by a party acting in person (CPR 40.6(7)). Where the parties have agreed the amount of costs, the order for costs must state that it is by consent (PD 44 para 9.10).
A court officer may enter and seal it if it is of a kind listed in CPR 40.6(3), none of the parties is a litigant in person, and no rule, practice direction or enactment requires the court’s approval (CPR 40.6(2)). The list includes a judgment or order for the payment of money, the dismissal of proceedings, a stay on agreed terms disposing of the proceedings, setting aside an unsatisfied default judgment, payment out of money in court, and the payment, assessment or waiver of costs. Otherwise a party applies for an order in the agreed terms (CPR 40.6(5)), filing an application notice with the draft, drawn so that the judge’s name and judicial title can be inserted (PD 40B para 3.3), and the court may deal with it without a hearing (CPR 40.6(6)). A court officer who thinks a consent order unclear or incorrect may refer it to a judge (PD 40B para 3.2).
How a Tomlin order works
A Tomlin order stays further proceedings on terms set out in a schedule, or in a separate agreement it refers to, with permission for the parties to apply to enforce those terms. It lets the parties include terms the court could not order, and it avoids separate proceedings on the settlement if either side says a term has been broken (Zenith at [48]). The parts that are the court’s order are the stay and the permission to apply; the schedule records the terms of settlement, which are a contract between the parties (Zenith at [61]; Community Care North East v Durham County Council [2010] EWHC 959 (QB) at [26] and [28]).
If a term is broken, a party applies in the same claim under the permission to apply, and the court decides then on the meaning of the terms and whether they can be enforced (Zenith at [61]). The court cannot vary the scheduled terms as it might an order: the standard permission is to enforce the terms, not to vary them (Community Care North East at [34] to [36]).
Where the costs clause goes
Practice Direction 40B para 3.5 deals with this directly. Where the parties draw up a consent order in the form of a stay on agreed terms disposing of the proceedings, and the terms are recorded in a schedule, any direction for payment of money out of court, or for payment and assessment of costs, “should be contained in the body of the order and not in the schedule”.
The reason is practical. The terms of the schedule are not an order made by the court (Community Care North East at [28]). On our reading, a costs term that appears only in the schedule gives the receiving party no order for costs on which to start detailed assessment: a party would first have to apply under the permission to apply for an order carrying that term into effect. A costs clause in the body of the order avoids that step.
A consent order that says nothing about costs has its own problem. As a general rule, where the court makes an order that does not mention costs, no party is entitled to costs in relation to that order (CPR 44.10(1)). Earlier costs orders in the claim still take effect according to their terms: costs reserved, for example, become costs in the case if no later order deals with them (PD 44 para 4.2).
The standard costs wordings and what they mean
The builder offers only these wordings, with the parties and the scope filled in, and never a figure:
| The wording | What it means |
|---|---|
| “The Defendant shall pay the Claimant’s costs of the claim, to be subject to detailed assessment on the standard basis if not agreed.” | Detailed assessment under Part 47 if the amount is not agreed (CPR 44.6(1)(c)), on the standard basis (CPR 44.3(2)) |
| The same, “on the indemnity basis” | Any doubt about whether costs were reasonably incurred or reasonable in amount is resolved in the receiving party’s favour (CPR 44.3(3)); the proportionality test in CPR 44.3(2) applies only on the standard basis |
| “… such costs to be the fixed costs and disbursements allowed by Part 45 of the Civil Procedure Rules, together with VAT where appropriate.” | The Part 45 fixed costs, with VAT on top where appropriate (CPR 45.2); no assessment by the hour |
| “There shall be no order as to costs”, or “Each party shall bear its own costs” | Each party bears its own costs (PD 44 para 4.2) |
| Tomlin orders only: “There shall be no order as to costs, the parties having agreed in the Schedule to this Order how the costs are to be dealt with.” | No order for costs: the agreement deals with them as a contract term, not an order of the court (Community Care North East at [26] and [28]). If the Schedule provides for one party to pay the other’s costs to be assessed, PD 40B para 3.5 says that direction should be in the body of the order instead; and “no order as to costs” on its own means each party bears its own costs (PD 44 para 4.2) |
Two points on “subject to detailed assessment if not agreed”. First, an order that does not say which basis applies is assessed on the standard basis (CPR 44.3(4)), and the Court of Appeal has held that the phrase plainly denotes assessment under Part 47 on the standard basis, unless the order provides for the indemnity basis (Doyle v M&D Foundations & Building Services Ltd [2022] EWCA Civ 927 at [44]). Second, under the regime Doyle considered, the fixed costs regime could be disapplied by agreement, so an agreed order in those words took the claim out of fixed costs (Doyle at [51] and [56]). Since April 2024, CPR 45.1(3) limits a claim in Sections IV, VI, VII or VIII of Part 45 to fixed costs unless the paying and receiving parties have each expressly agreed that Part 45 should not apply. Whether an agreed order for detailed assessment, without more, is that express agreement has not, so far as we know, been decided; on our reading it may not be, so an order meant to take a claim out of fixed costs should say so expressly. The context can also point the other way, as where the words appear in a Part 36 offer that is accepted (Doyle at [53] to [56]). As Males LJ said in Ho v Adelekun, recorded in Doyle at [55], parties who intend fixed costs can easily say so.
Unless the order sets another date, costs assessed after the order are payable within 14 days of the certificate that states the amount (CPR 44.7(1)(b) and (c)), and the court can order interest on costs from or until a certain date (CPR 44.2(6)(g)). A payment on account of costs needs a figure, so the builder leaves any agreed sum to the terms, in the parties’ own words. The free costs order decoder explains what each costs order means for who pays.
After the order: assessment and payment
Under an order to pay costs to be assessed if not agreed, either party may apply for a costs certificate in the agreed amount once the costs are agreed (CPR 47.10). If they are not agreed, detailed assessment proceedings must be started within 3 months of the order (CPR 47.7), by serving a notice of commencement and the bill: our free N252 builder fills in the notice, and the detailed assessment deadline calculator gives each date that follows.
A consent order is made in a claim that has been issued. Where the parties settled everything, including who pays the costs, before proceedings started, but cannot agree the amount of the costs, the route is costs-only proceedings by a Part 8 claim (CPR 46.14): see our guide to CPR 46.14 costs-only proceedings.
Settlements with repair terms
Where a housing disrepair settlement includes works the landlord agrees to carry out, the choice between the two orders decides how those works can be enforced: as an order of the court, or as a contract term through the permission to apply. Our guide to breach of settlement in housing disrepair claims deals with the further costs when agreed works are not done.
Children and protected parties
Where a claim is made by or on behalf of, or against, a child or protected party, no settlement, compromise or payment, and no acceptance of money paid into court, is valid so far as it relates to that claim without the court’s approval (CPR 21.10(1)). The documents in support include a draft consent order setting out the proposed terms (CPR 21.10(3)), and where proceedings have not been started and their only purpose is approval, the claim is made under Part 8 (CPR 21.10(2)). The builder stops if a child or protected party is involved.
The court fee
Schedule 1 to the Civil Proceedings Fees Order 2008 does not name consent orders or Tomlin orders. Both are asked for by an application by consent, so on our reading the fee is £126 (fee 2.5(a)), the fee for an application by consent or without notice where no other fee is specified. An application by consent for payment out of funds deposited in court is £63 (fee 2.5(b)). The civil court fees calculator lists both with every other fee by form and step.
How DMD Costs can help
We do not draft settlement terms or advise on them, and the builder only records terms the parties have already agreed. Where the order provides for costs to be assessed if not agreed, DMD Costs prepares the bill and negotiates the costs for claimant solicitor firms in housing disrepair, clinical negligence and MoD NIHL claims. The fee is fixed and agreed before any work begins.
Sources
- CPR Part 40 (rule 40.6) and Practice Direction 40B (paras 3.2, 3.3 and 3.5)
- CPR Part 44 (rules 44.2(6)(g), 44.3, 44.6, 44.7 and 44.10) and Practice Direction 44 (paras 4.2 and 9.10)
- CPR Part 45 (rules 45.1(3) and 45.2)
- CPR Part 46 (rule 46.14) and CPR Part 47 (rules 47.7 and 47.10)
- CPR Part 21 (rule 21.10) and CPR Part 5 (rule 5.4C)
- Civil Proceedings Fees Order 2008, Schedule 1 (fees 2.5(a) and 2.5(b))
- Community Care North East v Durham County Council [2010] EWHC 959 (QB)
- Vanden Recycling Ltd v Kras Recycling BV [2017] EWCA Civ 354
- Zenith Logistics Services (UK) Ltd v Coury [2020] EWHC 774 (QB)
- Doyle v M&D Foundations & Building Services Ltd [2022] EWCA Civ 927