Enforcing a settlement under a DIFC Tomlin order: do you need a fresh claim?

The DIFC Court of Appeal has confirmed that a party can enforce a settlement scheduled to a Tomlin order by application within the stayed proceedings, without issuing a new claim, provided the breach is clear and the terms are certain.

The question clients actually face

You settle a DIFC claim. The terms are recorded in a schedule, the proceedings are stayed on a Tomlin order, and everyone moves on. Six months later the other side stops paying, or breaches a confidentiality or non-compete term in the schedule. The practical question is immediate: do you have to start a brand-new claim for breach of contract, with all the delay and cost that involves, or can you go straight back into the original case file and ask the court to enforce what was agreed?

What a Tomlin order actually does

A Tomlin order is a consent order that stays the underlying proceedings on terms set out in a schedule, rather than dismissing the case outright. The order itself is usually short: proceedings stayed except for the purpose of implementing the scheduled terms, with liberty to apply. The schedule, which contains the real commercial deal (payment amounts, instalments, confidentiality, restrictive covenants), is not itself a judgment. That distinction has always created a practical trap: because the schedule is a contract, not a court order, some litigants assumed a breach meant starting fresh proceedings for breach of contract, effectively relitigating from scratch.

What the Court of Appeal has now settled

The DIFC Court of Appeal ruling confirms the more efficient route: where the stay is expressed with liberty to apply for the purpose of enforcing the scheduled terms, a party does not need to commence a new action to enforce a breached settlement. It can make an application within the existing, stayed proceedings, asking the court to lift the stay for the limited purpose of giving effect to the agreed terms, including entering judgment for a sum due or ordering specific compliance.

This matters because the alternative, a fresh claim, means a new case number, new court fees, a new limitation analysis, and the risk that the defendant reopens arguments the settlement was meant to close down. The Court of Appeal's approach keeps enforcement firmly tethered to the original proceedings and the parties' bargain, so long as two conditions are met:

• The Tomlin order's liberty to apply was drafted broadly enough to cover enforcement of the schedule, not merely procedural housekeeping; and
• The breach and the obligation breached are sufficiently clear and undisputed that the matter can be resolved by application rather than requiring a full trial of new factual issues.

A Tomlin order should be drafted so the schedule can be enforced by application, not relitigated as a new dispute.

What this means for drafting and strategy

For anyone settling DIFC litigation, the ruling changes how a Tomlin order should be drafted and how a breach should be pursued:

• Draft the liberty to apply broadly. State expressly that either party may apply to the court, within the stayed proceedings, for an order enforcing the terms of the schedule, including for judgment for any sum due. Vague or narrow liberty-to-apply wording invites exactly the argument the Court of Appeal has now had to resolve.
• Keep the schedule itself precise. Payment dates, amounts, and the consequences of default (acceleration, interest, who bears enforcement costs) should be stated in terms that leave no room for a defendant to argue the application raises a disputed question of contractual interpretation requiring a full claim.
• Act on the application route first. Before issuing a fresh claim for breach of a scheduled settlement, check whether the original Tomlin order permits an application. If it does, this is almost always faster and cheaper, and avoids giving the defaulting party a new procedural battleground.
• Watch for genuine disputes. If the alleged breach turns on contested facts, such as whether a confidentiality clause was actually broken, the application route may not be available and a substantive claim will still be needed. The ruling does not convert every settlement dispute into a summary enforcement exercise.

For in-house counsel managing a portfolio of DIFC settlements, the immediate action point is to audit existing Tomlin orders: check the liberty-to-apply wording now, rather than discovering its scope only when a counterparty defaults.

Key references: DIFC Court of Appeal ruling on enforcement of settlement agreements under Tomlin orders; Rules of the DIFC Courts (RDC) governing consent orders and applications; general principles of Tomlin order practice. General information, not legal advice.