Origins
The order is named after the High Court judge Mr Justice Tomlin (as he then was), from his ruling in Dashwood v Dashwood ( WN 276, 64 LJNC 431, 71 Sol Jo 911) delivered on 1 November 1927, that such an order kept the proceedings alive only to the extent necessary to enable a party to enforce the terms of the settlement. In that case, Tomlin J held that a provision in the order which required one party to refrain from running a business in competition with the other party could not be enforced unless and until the court made an order for specific performance or for an injunction. Thus, any provisions in a Tomlin order which require action by the court, such as releasing funds held in court, or an order for costs, must be included in the body of the order, not the schedule. Until a second order has been sought, it is not possible to apply to commit the party in breach for contempt of court.
The following day, Tomlin J issued Practice Note WN 290, which set out a preferred form for such orders. A similar form of order appeared in the Rules of the Supreme Court and appears in the Civil Procedure Rules today. (Now to be found in the Chancery Guide at paragraph 9.15.) The form of the schedule is settled between the parties.
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