A. COURT ORDER vs TOMLIN ORDER — THE CORE DIFFERENCE

1. Court Order (Standard Order)

A Court Order is an order made by a judge, sealed by the court, and enforceable immediately unless otherwise specified.

Characteristics

  • Issued after a hearing, or on paper, but always by a judge.

  • Must carry a court seal and proper case details.

  • Enforceable via:

    • Warrant/Writ of Control

    • Charging Order

    • Attachment of Earnings

    • Third-Party Debt Order

  • Can impose directions, deadlines, sanctions.

  • Breach = contempt routes available.

Legal Standing

A real Court Order has judicial authority, CPR compliance and jurisdiction.
An order issued by an administrative processing centre (e.g., CNBC) without judicial approval is not a valid order.

 If no judicial seal → not a Court Order → potentially void.

2. Tomlin Order (Consent Order Containing a Schedule)

A Tomlin Order is an agreement between parties that the court simply “notes”.
The court only stays proceedings; it does NOT approve or impose the settlement terms.

Characteristics

  • The terms of the settlement sit in a private schedule.

  • The court does not examine or approve the terms.

  • The schedule is not a court order.

  • Enforcement requires permission of the court (CPR 23).

  • No judgment is entered unless the schedule is later enforced.

Legal Standing Rules

A Tomlin Order is only valid if ALL are true:

  1. Signed by both parties contemporaneously

  2. Submitted to a court with jurisdiction

  3. Reviewed and sealed by a judge

  4. Properly filed in the court record

If any of these fail →
It is not binding and has no enforceability.

This is exactly the defect we identified in the Iwoca PG scenario.

B. HOW THEY ARE USED IN COMMERCIAL DEBT CASES

1. How Creditors Use Court Orders in Commercial Debt

Creditors seek a judgment to:

  • Crystalise liability

  • Enforce against the company

  • Enforce against a personal guarantor (PG)

  • Add interest at judgment rate (8% under the 1991 Order)

A judgment makes it easy to escalate to enforcement.

2. How Creditors Use Tomlin Orders in Commercial Debt

A Tomlin Order is often used by lenders such as Iwoca, Funding Circle, OnStrust, etc. to:

  • Avoid a judicial hearing

  • Secure an “agreement” that the borrower/guarantor believes is a binding court order

  • Freeze disputes before the borrower can challenge the agreement

  • Bind the personal guarantor into payment terms without judicial oversight

But:
Because a Tomlin Order is not binding unless sealed by a judge, lenders often rely on the illusion of authority.

This is where many DCAs and solicitors misrepresent the nature of the document.

C. WHY A DEFECTIVE TOMLIN ORDER DESTROYS THE CREDITOR’S POSITION

If:

  • It was never sealed

  • It was issued by CNBC without judicial approval

  • It was not filed correctly

  • It was not contemporaneously agreed

  • It contains ambiguity

  • Or it was presented as a “court order” falsely

…then legally:

1. It is not a court order.

No seal → no judicial authority → unenforceable.

2. It is not binding.

An unsealed Tomlin Order is a private agreement at best and frequently voidable.

3. It cannot be enforced without a fresh application.

Schedule terms require permission to enforce.

4. It exposes the creditor to misrepresentation issues.

Particularly where they told the business or PG that:

  • “This is an official court order”

  • “You must sign or the court will punish you”

That behaviour is legally dangerous for the creditor.

5. It collapses their ability to pursue the PG.

A defective order means there is no crystallised agreement for PG enforcement.

D. PERSONAL GUARANTEES + COURT ORDERS + TOMLIN ORDERS

1. Personal Guarantee + Court Order

If the lender gets a judgment against the company AND the PG, they can enforce against both.

The PG is liable jointly and severally, meaning the creditor can go directly after the guarantor.

2. Personal Guarantee + Tomlin Order

This is highly strategic for creditors.

They try to get the PG to:

  • Admit liability

  • Enter payment terms

  • Waive defences

  • Waive mis-selling arguments

  • Waive dispute rights

BUT ONLY IF THE TOMLIN ORDER IS VALID.

If the Tomlin is defective:

  • The PG admission collapses

  • The agreement is voidable

  • There is no court authority behind it

  • Enforcement is stopped

  • You can challenge any subsequent action

In commercial debt litigation, a defective Tomlin Order is a nuclear weapon for the defence.

F. THE STRATEGIC REALITY IN COMMERCIAL DEBT

Creditors prefer Tomlin Orders because:

  • They bypass judicial scrutiny

  • They scare the business into “consenting”

  • They avoid revealing gaps in paperwork

  • They avoid proper assignment disclosure

  • They prevent the dispute being tested before a judge

But if the Tomlin Order is defective, the debtor has:

✔ A complete defence to enforcement

✔ A basis to void the agreement

✔ A GDPR/Regulatory complaint route

✔ A way to stall action for months

✔ A tool to attack the solicitor’s conduct