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Planning ahead

Capping, estimates and budgets: Michael Bacon reports on recent developments and cases in the field of costs

23 January 2004

Although there has been no startling change to law, practice or procedure, some members of the profession seem unaware of the ‘trap’ which may ensnare the unwary who elect or are required to reflect settlement of proceedings by a Tomlin Order. In April last year, Ward LJ considered whether proceedings were still extant after the making of a Tomlin order under which proceedings are stayed following agreement between the parties as to the terms of settlement. Citing Rofa Sport Management AG v DHL International (UK) Ltd [1989] WLR 902, which held that ‘stay’ in an order should not be treated as a possible equivalent of a dismissal or a discontinuance, the judge upheld an appeal from the decision of the court below that there were no proceedings extant in which an application to join another party as second defendant could be made. In other words, when an action is stayed it does not come to an end. Herein lies the costs ‘trap’ because, as may be seen from a helpful...

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