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TOLATA handouts

The Case of Gavin and Stacey

Handout 1 - The case of Gavin and Stacey

Handout 2 – Letter before the claim

Handout 3 – Letter in response

Handout 4 – Particulars of claim

Handout 5 – Gavin and Stacy defence

Handout 6 – Gavin and Stacy deed of settlement

Handout 7 – Gavin and Stacy Tomlin order

Handout 8 – Draft TOLATA order after trial

Handout 9 – Procedural Table March 19

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Resolution Conference Cohabitation Seminar

The case of Gavin and Stacey.

Gavin and Stacey lived together for about 5 years and had one child, Nessa, who

is 4 years old. They are not married.

Gavin owns a large 3 bedroomed garden floor flat in a substantial Victorian

property in Richmond, Surrey. He has lived there since 1994 when he purchased

a long leasehold interest for £80,000. It is now worth £1.5M and is subject to a

mortgage of about £400,000.

In 2013 Gavin and Stacey met via a blind date and shortly afterwards Stacey

discovered that she was pregnant with Nessa.

Gavin earns £100,000 gross per annum and Stacey has not been in paid

employment since the birth of Nessa.

The parties’ relationship developed during the pregnancy and one day Gavin sent

Stacey an email which said “Come and live with me, the flat will be our home

and our future will be together.” Following this Stacey gave up her assured

shorthold tenancy and moved in with Gavin.

Stacey has previously worked as a PA in a large chartered surveyors’ practice

and used her property knowledge to good effect once she moved in. She

obtained consent to alter the kitchen substantially, to create a large living area

with a fully modernised and high spec kitchen, which included incorporating an

external lean-to structure into the usable space. Stacey also undertook much

physical work herself, included wielding a sledgehammer to remove the old lean-

to and carting away substantial amounts of rubble. She also liaised with the

builders, acting as the project manager.

At Christmas 2017 Stacey enclosed a cheque for £50,000 in Gavin’s Christmas

Card. It said, “These are my life savings but I want to put them to our building

project and our home. Happy Christmas xxx.” Gavin has spent the money on the

project.

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Given the substantial equity in the property, the parties discussed moving out of

London so that they could have a larger property and some land. Stacey said

she was keen to move back to her childhood home of Barry Island, South Wales

and the parties spent several weekends looking at large family homes in that

area.

Sadly the parties’ relationship broke down in June 2018.

Stacey is claiming a 50% share in the London property upon the basis of a

constructive trust or estoppel principles, and/or a Children Act 1989, Schedule 1

settlement and a Schedule 1 lump sum for equipping and a car.

The only equity Gavin has is tied up in his house and he has made full disclosure

of his earnings over the last 3 years.

Questions

1. Does the fact that Stacey had given up her assured shorthold tenancy

count as a relevant form of detriment?

2. How can Gavin’s promise be interpreted?

3. What is the character of the £50,000?

4. Why has Stacey done the work on the kitchen?

5. Where is the reliance here?

6. Does Stacey have a case

a. For a resulting trust?

b. For a constructive trust?

c. For an equity arising by way of proprietary estoppel?

7. What orders

a. Does the court have power to make?

b. Is the court likely to make here?

8. If the civil court is going to make an award, how will it be quantified?

9. What are the likely Schedule 1 options here?

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Kindly and Co The Shambles

Anytown Sue, Grabbit and Run The Fast Lane BigTown

1 April 2019

Dear Sirs

Re Gavin and Stacey

As you know we represent Stacey concerning this very troubling and unfair cohabitation case. We write in respect of Stacey’s claims against Gavin.

We understand that Gavin and Stacey are both domiciled in England and Wales and that therefore the Maintenance Regulation applies in this case.

The parties were together for some 5 years and had a child together, Nessa, who is now 4 years old.

Stacey fell pregnant shortly after the parties met and Gavin invited Stacey to move into his flat at Desirable Villas, Richmond, Surrey (“the property”). Stacey gave up her secure accommodation to do so and now does not have a job either.

Stacey has done lots of work on the property, as you well know, including wielding a sledgehammer.

Stacey also gave your client £50,000 last Christmas and she would now like this back or for it to be factored into the clean break settlement which will clearly be called for here.

Given that Stacey has the care of your child, she firmly believes that she has a good case for a 50% of the interest in property which can be paid to her in a lump sum. Any other result which simply be very unfair as she needs a house.

Stacey also has rights under Schedule 1 to the Children Act 1989. Given that these proceedings arise out of substantially the same facts as the cohabitation law claim we propose to make, we have advised that unless you agree to all our demands within 7 days we shall be issuing both sets of proceedings in the Family Court at the Central Family Court and we shall be asking for an urgent direction that the matters be consolidated.

We shall be seeking all our of costs from you, unless you offer us an appropriate lump sum within 7 days and also compensate Stacey for her pension losses as she is now out of work.

Kindest Regards Andrew Careless (LLB) Solicitor Kindly and Co

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Kindly and Co

The Shambles

Anytown

6 April 2019

Dear Sirs

RE Gavin and Stacey

Thank you for your letter of 1 April 2019. We confirm that we are instructed by Gavin.

Your client’s threat of proceedings against our client is astonishing. Having considered the contents of your letter we cannot see that your client has any meritorious claim against the property. We are instructed that Gavin intends to defend any proceedings brought by your client robustly.

We are particularly concerned by your complete failure to comply with the CPR Practice Direction on Pre-Action Conduct. Paragraph 6 requires your client to set out in a letter ‘the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant, and if money, how the amount is calculated’. You are also required to disclose key documents relevant to the issues in dispute. Your letter does not comply with the Practice Direction. We are unable to respond any more substantively to a claim which you have wholly failed to explain with any particularity.

We also refer you to paragraphs 8 to 11 inclusive of the Practice Direction, which require the parties to use litigation as a last resort and to consider the use of ADR. We would like to consider the merits of ADR in this case but we are unable to do so at this stage given the embarrassingly vague nature of your letter.

We hereby put you on notice that if your client issues proceedings without complying with the pre-action Practice Direction we will seek costs against your client and against your firm.

Sue, Grabbit and Run

The Fast Lane

BigTown

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In the event your client wishes to pursue matters further would you please ensure that your letter before claim properly deals with the basis of your claim in law. As you know, the property was owned by Gavin in his sole name long before your client and he met. There has been no change to his ownership of the property since then. The fact that your client has lived at the property and may have voluntarily done some work to the property (as to which, our client will point to the shoddy nature of the work she has done, and the fact that rather than improving the property she has caused our client loss) do not change the fact that the property was and remains our client’s sole property.

As for any further claims your client seeks to me, we do not understand your reference to the Maintenance Regulation. Our client makes no admissions as to domicile or jurisdiction in any event. Any claim your client may have for child maintenance in relation to Nessa are matters for the Child Maintenance Service and our client confirms that he will pay maintenance as required by the law.

We note your intention to make a claim under Schedule 1 of the Children Act 1989. What relief will your client be seeking? We suggest that before you issue any such claim you explain what your client seeks and the parties exchange relevant financial information on a voluntary basis so that the merits of any claim by your client can be considered.

Could you also please explain the jurisdictional basis upon which your client’s civil and family claims can be consolidated? As we understand the relevant Rules, any Children Act proceedings must be brought in the Family Court while any property dispute must be in the High Court or the County Court.

We look forward to hearing from you.

Yours faithfully

Sue, Grabbitt & Run

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IN THE COUNTY COURT SITTING IN CENTRAL LONDON

CLAIM:1912345

BETWEEN:-

STACEY

Claimant

-and-

GAVIN

Defendant

PARTICULARS OF CLAIM

1. The Claimant and Defendant, although unmarried, were in cohabiting relationship

between mid 2013 and late 2018. The parties have one child together, Nessa, who was

born on the 1 April 2014.

2. In or about 1994 the Defendant acquired the long leasehold title to the 3 bedroomed,

garden floor flat at Desirable Villa, Richmond, Surrey, which is registered at the Land

Registry under title number Resconf19 (“the property”). The purchase price was

approximately £80,000. The property is now worth approximately £1.5M and is subject to

an interest only mortgage with Larry’s Bank PLC for about £400,000.

3. Prior to meeting the Defendant, the Claimant lived in property at Manchester Road,

which was subject to a 6 month Assured Shorthold Tenancy in the Claimant’s sole name.

4. Shortly after the parties met in or about 2013, Stacey fell pregnant with Nessa.

5. Whilst the Claimant was pregnant with Nessa, she received an email communication from

the Defendant, which stated, “Come and live with me, the flat will be our home and our

future will be together.”

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6. In reliance upon the Defendant’s representation in the email, the Claimant gave up her

Assured Shorthold Tenancy and moved in with the Defendant.

7. In or about late 2016 the parties agreed that the kitchen at the property should be extended

and modernised.

8. At all material times the Claimant was very knowledgeable about property development,

the planning process and project managing extensions. The parties agreed, further to their

agreement to extend the kitchen, that the Claimant would seek the necessary planning

consents and project manage the extension, which the Claimant then did over the course

of about 15 months.

9. The Defendant hired and paid for the builders to undertake some of the works. The

Claimant project managed the builders and also undertook significant physical work

herself, including the demolition of a redundant lean-to and carting away unwanted

rubble. The Claimant worked on the project every day for about 15 months and was

unable to seek any other paid employment during this time by reason of her engagement

in the project.

10. In or about Christmas 2017 the Claimant made a £50,000 financial contribution to the

kitchen project. £50,000 was paid directly to the Defendant who then used the money to

help pay for high quality kitchen fittings, marble work-tops and appliances.

11. The Claimant’s agreement to assist with the kitchen extension, her obtaining planning

consent, project management, physical labour and the payment of £50,000 were all made

in reliance upon the Defendant’s representation to her that the property would be her

home and the parties’ future was together. The Claimant reasonably understood the

Defendant’s comments to her to be a promise that she would have a beneficial share in

the property or in the alternative she would have a right to reside in the property for her

lifetime.

12. In the alternative it should be inferred by the parties’ said conduct in relation to the

kitchen extension that they intended that the Claimant would acquire a beneficial interest

in the property or in the alternative a right to occupy the property for her life.

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13. The Defendant holds the property upon a common intention constructive trust for the

Claimant and Defendant as tenants in common in equal shares, or in such unequal shares

as the court may infer the parties’ intended or in the absence of any such evidence as to

shares, in such shares as the court may impute to be fair. In the alternative the Claimant

has an equity arising by way of proprietary estoppel.

14. The purpose of the said trust was for the parties to live in the property as a family.

15. The parties separated in or about mid 2018 following a very acrimonious series of

arguments and the Claimant left the property with Nessa at this time.

16. The purpose of the trust has now come to an end and the property should be sold.

AND THE CLAIMANT CLAIMS

1) A declaration that the Defendant holds the property upon trust for the parties as

tenants in common in equal shares or in such shares as the court may infer the parties’

intended or in such shares as the court may impute to be fair.

2) An order for sale.

3) All necessary accounts and enquiries.

4) Further and other relief.

5) Costs.

PETER PLEADER

I confirm that the contents of this statement of case are true

Name …………………………

Signed ………………………….

Dated …………………………..

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IN THE COUNTY COURT SITTING IN CENTRAL LONDON

CLAIM:1912345

BETWEEN:-

STACEY

Claimant

-and-

GAVIN

Defendant

DEFENCE AND COUNTERCLAIM

1. References to paragraph numbers are to the paragraphs so numbered in the Particulars

of Claim, unless otherwise stated.

DEFENCE

2. Paragraph 1 is admitted.

3. Paragraph 2 is admitted save that it is not admitted that the property is now worth £1.5

million and it is denied that the mortgage with Larry’s Bank PLC stands at £400,000.

It is averred that as at 31 March 2019 the redemption figure for the mortgage secured

over the property stood at £413,212.88. It is averred that the Defendant was at all

material times, and remains, absolutely entitled to the property as its sole legal and

beneficial owner.

4. As to paragraph 3, it is admitted that the Claimant lived in a property at Manchester

Road at the time the Claimant met the Defendant, but it is averred that she was

sharing the flat with two other friends and no admission is made as to the basis of the

Claimant’s occupation of that property, or as to her security of tenure.

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5. Paragraph 4 is admitted.

6. Paragraph 5 is admitted. It is denied, insofar as it may be alleged by the Claimant,

that the Defendant at any time indicated to the Claimant that she would have any

rights to the property beyond being the Defendant’s bare licensee. It is averred that

the Claimant accepted that she would occupy the property as a bare licensee. It is

averred that the email referred to at paragraph 5 was part of a longer series of emails,

text messages and discussions between the Claimant and the Defendant on the subject

of them living together. The Defendant will rely on the full series of communications

between the parties prior to the Claimant moving into the property, and in particular

the following emails:

a. On 12 April 2013 the Claimant sent an email to the Defendant which stated: ‘I

do not think my current flat-share will be a suitable environment for me to live

with our child. In any event, the tenancy is coming to an end and my flat-

mates are looking to move out. I do not think I will be able to stay here.

Therefore, as we discussed last night, I would like us to live together as a

family.’

b. On 13 April 2013 the Defendant sent an email to the Claimant in response

within which he stated: ‘I am looking forward to us becoming parents to our

baby. I agree that your current flat is not the right place for you to live with

our baby. I have worked really hard to be able to own my own flat and I have

made it a nice place to live. I think that it would be better if we lived together

here. Things have happened faster than I had planned in our relationship as a

result of you falling pregnant so quickly and unexpectedly. I do not know how

things will work out, but my hopes are that you can come and live with me, the

flat will be our home and our future will be together. We should give it a go

for the sake of our baby and see how things work out.”

c. Later on 13 April 2013 the Claimant replied by way of a text message which

stated: “Thx for your email. I really do want to move in. I am going to lose

this flat by the end of the month anyway. I know it is your flat and your pride

and joy. I respect that so no need for you to worry. I am after you for your

body and not your money!!! But I do want us to give living together a try.”

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7. It is admitted that the Claimant moved in with the Defendant at the property on or

about 21 April 2013. Save as aforesaid, paragraph 6 is denied.

8. Paragraph 7 is admitted insofar as it is accepted that the Claimant and the Defendant

discussed plans to extend and modernise the kitchen. It is averred that the decision to

proceed with the works was ultimately taken by the Defendant as the sole owner of

the property, following his discussions with an consultation with the Claimant.

9. Save has hereinafter set out, paragraph 8 is denied:

a. It is denied that the Claimant had any special knowledge of property

development, planning or project management as alleged in paragraph 8 or at

all.

b. It is admitted that the Claimant volunteered to assist the Defendant with some

of the paperwork and administration relating to the plans for the building

works, and the Claimant specifically said that she wished to do so because she

was aware that the Defendant did not have as much time as her in view of his

full-time work and as she was not working or financially contributing to the

household costs she wanted to help the Defendant.

c. It is averred that plans for the extension and the planning application were

prepared by an architect and the Claimant’s assistance amounted to

completing a few forms and depositing them along with the planning

application fee with the planning authority.

d. It is averred that the Claimant’s work on the planning consents and project

management involved a minimal amount of time on her part.

10. As to paragraph 9:

a. It is admitted that the Defendant hired and paid the builders to undertake the

works.

b. It is denied that the Claimant project managed the works. The Defendant

entered into a contract with Easy Build Limited on 29 August 2017 which

contract provided for the full works to be undertaken by Easy Build Limited,

to include all project management.

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c. It is averred that pursuant to the contract Easy Build Limited arranged for the

relevant tradesmen to conduct the building works and project managed the

entire build.

d. It is admitted that the Claimant demolished a redundant lean-to at the property

approximately 3 months before the planning permission was granted and some

6 months before the building works began, but it is averred that she did so

without prior consultation with the Defendant and without his consent. The

Claimant carried out the works over a single weekend while the Defendant

was away from the property with the parties’ daughter visiting his parents.

When the Defendant saw what she had done and challenged her about it the

Claimant responded ‘I was bored and as it was a nice day I thought I might as

well get the building works started.’

e. It is denied that the Claimant worked every day on the project and she is put to

strict proof of the work she claims to have done.

f. It is denied that the Claimant was unable to seek other paid employment due to

her engagement in the building works. It is averred that shortly after the birth

of Nessa in late 2013 the Claimant had informed the Defendant that she did

not intend to go to work until Nessa was close to secondary school age.

11. Paragraph 10 is admitted. The Claimant gave the £50,000 to the Defendant as a

Christmas present on Christmas Day 2017. The Defendant initially declined to accept

the money but the Claimant insisted he take it. She said ‘it is a sign of how much I

love you and how much appreciate everything you have done to look after me’. The

Claimant made it clear that it was a gift and she gave the Defendant no indication that

she expected anything in return for the gift.

12. Paragraph 11 is denied. It is averred that at all material times the Defendant had made

it clear to the Claimant that the property remained his sole property and the Defendant

understood and believed, based on the Claimant’s words and conduct, that the

Claimant understood and acknowledged that she lived there as his partner but that she

had no financial interest in the property.

13. Paragraph 12 is denied.

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14. Paragraph 13 is denied.

15. Paragraph 14 is denied. It is admitted that the Defendant granted the Claimant a

licence to occupy the property with him for as long as they remained a family

together, but the Claimant understood and agreed that her licence would last only for

as long as she and the Defendant remained in a relationship together.

16. As to paragraph 15, it is admitted that the parties separated in June 2018 when the

Claimant moved out of the property with Nessa. No admissions are made as to the

cause of the separation and it is averred that the reasons for the separation are

irrelevant to the issues in these proceedings.

17. Paragraph 16 is denied in that there is no trust in respect of the property and there is

no jurisdiction for an order to be made requiring the Defendant to sell the property.

______________________________

COUNTERCLAIM

______________________________

18. The Defendant repeats the Defence herein.

AND THE DEFENDANT COUNTERCLAIMS:

(1) A declaration that the Defendant holds legal and beneficial title to the property

absolutely;

(2) An order that the Claimant’s restriction entered against the property at HM Land

Registry be removed from the Register forthwith;

(3) A declaration that the Claimant’s licence to occupy the property has ended;

(4) Costs.

SIR GODFREY BROYEUR-DES-BALLES QC

Statement of Truth

I confirm that the contents of this Defence and Counterclaim are true.

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Name …………………………

Signed ………………………….

Dated …………………………..

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DEED OF SETTLEMENT AND RELEASE

THIS DEED OF SETTLEMENT AND RELEASE is dated [DATE]

PARTIES TO THE DEED

(1) Gavin of Garden Floor Flat, Desirable Villa, Richmond, Surrey.

(2) Stacey of …

BACKGROUND

A dispute has arisen between the parties relating to the ownership of the leasehold interest in Garden Floor Flat, Desirable Villa, Richmond, Surrey (the “Dispute”).

The parties have settled the Dispute and have agreed terms for the full and final settlement of the Dispute and wish to record those terms of settlement, on a binding basis, in this agreement.

AGREED TERMS

1. EFFECT OF THIS AGREEMENT

The parties hereby agree that upon signing, this agreement shall immediately be fully and effectively binding on them.

2. RELEASE

This agreement is in full and final settlement of, and each party hereby releases and forever discharges, all and/or any actions, claims, rights, demands and set-offs, whether in this jurisdiction or any other, whether or not presently known to the parties or to the law, and whether in law or equity, that each of them ever had, may have or hereafter can, shall or may have against the other party arising out of or connected with:

(a) the Dispute;

(b) any other matter arising out of or connected with the relationship between the parties;

(together the “Released Claims”)

save that either party may bring proceedings for the purposes of the enforcement of this Settlement and Release Agreement.

3. AGREEMENT NOT TO SUE

Each party agrees not to sue, commence, voluntarily aid in any way, prosecute or cause to be commenced or prosecuted against the other party any action, suit or other proceeding concerning the Released Claims, in this jurisdiction or any other.

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4. LEGAL AND BENEFICIAL OWNERSHIP

4.1 Gavin shall pay to Stacey the sum of £75,000 (the “Settlement Sum”) in full and final settlement of the Released Claims. This sum shall be paid to Stacey by 31 April 2019 (the “Due Date”).

4.2 In the event that the Settlement Sum is not paid by the Due Date, simple interest will accrue at the Judgment Debt rate of 8% per annum.

5. CONFIDENTIALITY

The terms of this agreement, and the substance of all negotiations in connection with it, are confidential to the parties and their advisers, who shall not disclose them to, or otherwise communicate them to, any third party other than:

(a) to the parties' respective insurers, lawyers and tax advisers on terms which preserve confidentiality;

(b) pursuant to an order of a court of competent jurisdiction; and

(c) as far as necessary to implement and enforce any of the terms of this agreement.

The parties are entitled to confirm the fact of, but not the terms of, settlement of the Dispute.

6. CO-OPERATION

6.1 The parties shall execute and deliver or cause to be delivered such instruments and other documents at such times and places as are reasonably necessary or desirable, and shall take any other action reasonably requested by the other party for the purpose of putting this agreement into effect.

7. VARIATION

Any variation of this agreement shall be in writing and signed by or on behalf of each party.

8. ENTIRE AGREEMENT

8.1 This agreement constitutes the entire understanding and agreement between the parties in relation to the subject matter of this agreement.

8.2 Each party acknowledges that it has not entered into this agreement in reliance wholly or partly on any representation or warranty made by or on behalf of the other party (whether orally or in writing) other than as expressly set out in this agreement.

9. COSTS

The parties shall each bear their own legal costs in relation to the Dispute, this agreement and the costs of carrying out this agreement.

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10. GOVERNING LAW AND JURISDICTION

This agreement shall be governed by, and construed in accordance with, the law of England and Wales. Any dispute arising out of or in connection with, or concerning the carrying into effect of, this agreement shall be subject to the exclusive jurisdiction of the courts of England and Wales, and the parties hereby submit to the exclusive jurisdiction of those courts for these purposes.

11. COMMENCEMENT DATE

This agreement has been entered into on the date stated at the beginning of it.

SIGNED AND DELIVERED AS A DEED BY GAVIN OF GARDEN FLOOR FLAT, DESIRABLE VILLA, RICHMOND SURREY.

Signature:

IN THE PRESENCE OF: [Witness Name]

Signature:

Address:

SIGNED AND DELIVERED AS A DEED BY STACEY OF ……

Signature:

IN THE PRESENCE OF: [Witness Name]

Signature:

Address:

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IN THE COUNTY COURT SITTING IN CENTRAL LONDON

CLAIM:1912345

BETWEEN:-

STACEY

Claimant

-and-

GAVIN

Defendant

DRAFT MINUTE OF ORDER

Before District Judge sitting on the 6 April 2019 at the County Court

in Central London.

IT IS ORDERED BY CONSENT:

1. The proceedings are stayed save for the purposes of enforcement on the terms as set

out in the schedule attached hereto. For the avoidance of doubt any application for

enforcement may be made by way of application within these proceedings and a fresh

action is not required.

2. No order as to costs.

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SCHEDULE

1.

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A Proposed Draft Final TOLATA Order.

Just about every permutation of order in family proceedings has been considered in the Family Standard Orders project. However, family lawyers and litigants-in-person are given no suggested template for an order made at the conclusion of proceedings brought under the Trusts of Land and Appointment of Trustees Act 1996. These disputes often bear all the hallmarks of a “family” dispute but do not feature in the Standard Orders menu as they are civil orders made in Chancery Division of the High Court or in the County Court.

Here follows a suggested draft for a basic final TOLATA order concerning a property subject to a mortgage in the style of the Family Standard Orders, with the occasional marginal note. Attention is also drawn to the particular and additional requirements, when lodging orders (whether by consent or otherwise) before Chancery Masters, pursuant to a Practice Directioni issued by the Chief Master which is effective from the 1 October 2014.

ORDER MADE BY [NAME OF JUDGE] ON [DATE] SITTING IN OPEN COURT.

Upon hearing [name the advocate(s) who appeared]

The Parties

1. The Claimant is XX The Defendant is YY

[The Second Defendant is ZZ]

Specify if any party acts by a litigation friend

Definitions

2. Property The “property” shall mean the property known as [insert address including postcode] registered at HM Land Registry under title number [insert]

3. “The mortgage” shall mean the mortgage secured upon the property in favour of [insert name of mortgagee].

Agreements / Declarations

4. Declaration It is declared that from [the date of this order] / [insert date] the [Claimant and Defendant] / [the Claimant] / [the Defendant] hold/[s] the property, subject to the mortgage, upon trust for the [Claimant and Defendant as joint tenants] / [Claimant and Defendant as tenants in common in equal shares] / [Claimant and Defendant as tenants in common, as to the Claimant [insert % share] and as to the Defendant [insert % share]] / [for the Claimant absolutely] / [for the Defendant absolutely]

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[BY CONSENT]ii IT IS ORDERED THAT

5. Order for Sale The property shall be sold forthwith on the open market for sale and the following conditions will apply:

a. the property shall be placed on the open market for sale immediately for [insert price] / [such price as may be agreed between the parties or in default of agreement determined by the court];

b. the property shall be sold for [a price in excess of [insert] / [such price as may be agreed between the parties [in excess of [insert] [or in default of agreement determined by the court];

c. [Both parties]/[the Claimant]/[the Defendant] shall have conduct of the sale; d. [the [Claimant’s]/[Defendant’s] solicitors]/[insert name of solicitors]/[such solicitors

as may be agreed between the parties or in default of agreement determined by the court] shall have the conduct of the conveyancing work relating to the sale;

e. [insert name of estate agents]/[such estate agents as may be agreed between the parties or in default of agreement determined by the court] shall offer the property for sale; and

f. the proceeds of sale shall be applied as follows: i. to discharge the mortgage; ii. in payment of the solicitors’ conveyancing costs and disbursements in

connection with the sale; iii. in payment of the estate agent’s charges; iv. [in payment of any capital gains tax payable upon the sale]; v. The balance to be paid to the parties in accordance with the declaration at the

start of this order.

6. Order granting permission for one party to bid for the propertyiii The [Claimant] / [and the] / [Defendant] [has] [each have] permission to bid for the property.

7. Order declining to order an immediate sale and granting one party exclusive rights of occupationiv The application for an order for an immediate sale of the property is dismissed and the [Claimant] / [Defendant] shall vacate the property by [insert date] and from that date the [Claimant] / [Defendant] shall have exclusive possession of the property, subject to the mortgage and orders made below, until [insert date] / [further order] / [when the property shall be marketed for sale in accordance with the provisions of paragraph [insert] of this order].

8. Provisions consequential to paragraph above providing for the remaining party to pay an occupation rent to the departing party and for the remaining party to pay the routine outgoings and expenses during their period of exclusive occupation.v [The [Claimant]/[Defendant] shall pay the [Claimant]/[Defendant] an occupation rent to the [Claimant] / [Defendant] in the sum of [insert the amount] per calendar month, to be paid monthly in advance, the first payment to commence on [insert date] until further order] / [completion of the sale of the property].

The [Claimant]/[Defendant], shall be responsible for the routine maintenance of the property (but not structural repairs, defined as repairs to load-bearing walls and to the

24

roof, which shall be shared equally in any event) and the payment of the running costs, including but not limited to buildings and contents insurance payments, capital and interest mortgage payments, [the capital element of which shall upon completion of sale of the property be the subject to an account as provided for in paragraph 11 below], council tax and utility bills in respect of the property, commencing [insert date] until [further order]/ [completion of the sale of the property].

9. Order requiring one party to deliver up vacant possession of the property onlyvi The [Claimant] / [Defendant] shall deliver up vacant possession of the property to the [Claimant] / [Defendant] by [insert date].

10. Order requiring a bare legal owner to transfer the legal title into the name of the beneficial ownervii The [Claimant]/[Defendant] shall execute a transfer of the legal title of the property into the [Claimant’s]/[Defendant’s] sole name by [insert date].

11. Order for an accountviii There shall be an equitable account in respect of the [Claimant’s]/[Defendant’s] occupation of the property from [insert date] / [the date of separation on [insert date]] to the date when the account is finalised and in respect of the [Claimant’s]/[Defendant’s]/[the parties’ respective] [capital [and/or] interest] mortgage contributions from the [insert date] / [date of separation] to the date when the account is finalised [and in respect of the [Claimant’s]/[Defendant’s] works of [improvement/repair] to the property [as set out in the schedule to this order] which have occurred from [insert date] / [the date of separation]. The matter shall be listed before the district judge for an account to be taken if not agreed. In the event that the parties are able to agree the account they shall forthwith each write to the district judge confirming the terms of their compromise.

12. Order requiring a party to remove a notice/restriction at the Land Registry The [Claimant]/[Defendant] shall use all reasonable endeavours from today’s date to cause the removal of [his]/[her] [notice]/[restriction] registered with the Land Registry in respect of the property.

13. Costs [The [Claimant]/[Defendant] shall pay the [Claimant’s]/[Defendant’s] costs by [insert date] [including the costs reserved by the order(s) made on [insert date(s)], and if the costs are not agreed they shall be assessed / subject to detailed assessment in accordance with the Civil Procedure Rules 1998 Part 47]. /

[The [Claimant]/[Defendant] shall make an interim payment on account of such costs to the [Claimant]/Defendant] in the sum of [insert amount] by [insert date] / [The [Claimant]/[Defendant] shall pay £[insert] towards the [Claimant’s]/[Defendant’s] costs by [insert date]] /

[There shall be no order as to costs]

25

14. Costs – no order save for detailed assessment of a party’s publicly funded costs There shall be no order as to costs save for detailed assessment of the [Claimant’s]/[Defendant’s] publicly funded costs in accordance with the Civil Procedure Rules 1998 Part 47.18.

Liberty to Apply

15. The parties shall have liberty to apply to the court as to the implementation and timing of the terms of this order only.

Dated

i http://www.judiciary.gov.uk/publications/chancery-masters-orders-effective-1st-october-2014/ ii Whilst it is possible to have a consent order in the form of this template, it is also common for parties to a civil compromise to agree a “Tomlin Order” which states only “The Claimant and Defendant having agreed to the terms set out in the Schedule hereto. IT IS ORDERED THAT All further proceedings in this claim be stayed except for the purpose of carrying such terms into effect. Liberty to apply as to the carrying such terms into effect.” The schedule may then contain detailed provisions which go beyond the court’s jurisdiction under TOLATA and may borrow heavily from Financial Remedy draft clauses. The agreements recorded in the schedule are contractual in nature and not undertakings to the court. iii Note provisions of CPR 40.16 and PD 40D 2 and 3 iv ss. 13 & 14 TOLATA. For more detail see e.g. “To sell or not to sell: that is the question. The irony of the Trusts of Land and Appointment of Trustees Act 1996.” Martin Dixon (Cambridge Law Journal, 2011, 70(3), 579 – 606) v ss. 13 & 14 TOLATA vi ss. 13 & 14 TOLATA and CPR 40.17 vii Order pursuant to rule in Saunders v Vautier (1841) 4 Beav 115, Cr & Ph 240 viii ss. 13 & 14 TOLATA

TOLATA Procedural Table (from @eGlance, where it is updated quarterly)

Reproduced with the kind permission of the authors & Class Legal. Go to www.classlegal.com/software/eglance for your free trial of @eGlance.

This Table sets out the common procedural steps and considerations for a family lawyer when bringing or defending a claim under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). Most documents require a statement of truth to be appended. Note that TOLATA proceedings are governed by the CPR 1998 and not by the FPR 2010.

From 1 April 2013 the CPR were significantly amended to incorporate the 'Jackson Reforms'. This Table incorporates the Jackson provisions most relevant for a family lawyer. Of particular note in this context are:

• The amendment to the Overriding Objective at CPR 1.1, not only 'to deal with cases justly' but now also 'at proportionate cost'. Proportionality (see CPR 44.3(2)) generally to trump reasonableness on an assessment of standard basis costs.

• Costs management to include costs budgeting prior to and at CMC in Multi-track matters. Court may also make a 'costs capping' order which will limit future recoverable costs: CPR 3.12 to 3.18 and PD 3E annexing Precedent H. For claims commenced after 22 April 2016 note that the budgeting requirements have been further amended.

• Less indulgence for relief from sanctions for non-compliance with orders: CPR 3.9. And see Andrew Mitchell MP v News Group Newspapers Limited [2013] EWCA Civ 1537; and Denton & Ors v TH White Ltd & Ors [2014] EWCA Civ 906 for two significant examples/bookends in a field which has been producing case law on a weekly basis. And see Commentary on Part 4: Sanctions and relief therefrom.

• New menu of disclosure options at CPR 31.5(7). • Court will more pro-actively limit the issues on which factual evidence may be given: CPR

32.2(3). • Enhancements for a Claimant who beats their Part 36 offer: CPR 36.17(3) and (4). • 'Buffer Amendment': From 5 June 2014 CPR 3.8(4) is inserted: 'unless the court orders

otherwise, the time for doing the act in question may be extended by prior written agreement of the parties for up to a maximum of 28 days, provided always that any such extension does not put at risk any hearing date.'

Key procedural developments of note

• From 25 April 2017 e-filing is compulsory in the Rolls Building Jurisdictions which includes the Chancery Division. From that date, all claims and applications must be issued via CE-File. Paper processes will no longer be available. Guide here.

• Chancery Division re-branded as Business and Property Courts from 2 October 2017. Advisory note here.

• 2018: note forthcoming disclosure pilot in Business and Property Courts. Details here. And note template directions for use in Business and Property Courts here.

Step Party Timing Reference

1 Pre-action, general considerations

A. No specific pre-action protocol letter applies to TOLATA proceedings. But note general pre-action protocol guidance in PD – Pre-Action Conduct

Each party

Pre-issue CPR 3.1(4)

PD – Pre-Action Conduct

for matters in Annex A which should be in pre-issue letter, and in response.

Note risk of costs consequences for failing to engage in ADR.

Laporte v Commissioner of Police [2015] EWHC 371 (QB)

B. Compliance with general protocol principles may be taken into account when court considers costs.

CPR 44.2(5)(a)

PD – Pre-Action Conduct, Annex A, para 4.2 & 4.6

C. Consider, so far as possible, protecting client in costs with well-pitched Pt 36 or without prejudice save as to costs offer.

Note that from 6 April 2015 an entirely new Part 36 comes into force.

Each party

At all stages of dispute to include pre-issue.

CPR 44.2(4)(c) & 44.4(3)(a)

CPR 36

D. If parties have, or may be found at trial to have, a beneficial joint tenancy, take instructions upon whether a notice of severance should be served.

Each party

Whenever the right of survivorship is to be avoided.

Goodman v Gallant [1986] Fam 106, [1986] 1 FLR 513

2 Protecting property pending proceedings

Claimant may wish to seek a restriction on the legal title at the Land Registry.

Claimant To prevent dealings in subject property.

Land Registry Practice Guide 19

• Care must be taken that facts relied upon are accurate: the application for restriction is likely to be closely examined if civil proceedings issued

• If contested, application for restriction is referred to the First-tier Tribunal (Property Chamber). If tribunal proceedings commenced, seek stay pending outcome of civil proceedings

Either party

Upon referral to Tribunal

Land Registration Act 2002, s. 110 and Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, rr. 37 to 40

'Sufficient interest' for restriction application is shown if freezing order applied for or granted or undertaking offered instead of freezing order.

Claimant If Freezing Order required

Land Registration Act 2002, s. 43; Land Registration Rules 2003, r. 93(h) and (i)

Nominated judges of County Court can make freezing orders in all cases.

County Court Remedies Regulations 2014 (SI 2014/982)

3 Are other remedies available?

If parties are engaged to marry Matrimonial Proceedings and Property Act 1970 s.37 may be relevant.

Claimant First Attendance MPPA 1970, s. 37; Dibble v Pfluger [2010] EWCA Civ 1005]

Note time limit: claim must be within 3 years after termination of engagement.

Within 3 years after termination of engagement.

LR(MP)A 1970, s.2

If parties have children consider concurrent Children Act 1989, Schedule 1 proceedings. Concurrent proceedings would have to be in a court venue where there is both a Family and County Court, or in the Family Division of the High Court. If district judge to hear Part 7 CPR claim then must have permission of Designated Civil Judge.

It is not possible to issue a TOLATA claim in the Family Court. The Central Family Court does not have a County Court jurisdiction (but query whether a district judge of PRFD may, if a TOLATA claim is transferred from the High Court, exercise High Court jurisdiction to hear it).

Each party

Pre-issue Children Act 1989, Sch. 1; W v W (Joinder of Trusts of Land and Children Act Applications) [2004] 2 FLR 321

4 Which court?

County Court has unlimited jurisdiction to hear TOLATA claims.

• If other equitable relief sought note £350,000 County Court limit

• Listing practice in London area is to transfer cases in excess of 3 days to Central London County Court

Claimant High Court and County Courts Jurisdiction Order 1991 (as amended), art 2(1)(p)

County Court Jurisdiction Order (SI 2014/503)

Consult PD 7A as to which tier of court. In excess of £100,000 to issue in High Court TOLATA cases are usually issued and/or heard in the Business and Property Courts, but may be issued and/or heard in the Family Division of the High Court.

PD 7A

Note court's powers of transfer.

Note 'informal' guidance issued to Chancery Masters on transfer of claims out of Business and Property

Either party

CPR 30

'informal' guidance

Courts in London.

5 Part 7 or Part 8?

Note compulsory requirement for e-filing in Rolls Building (see introduction above.)

In most TOLATA cases, Pt 7 procedure (pleadings, disclosure, evidence) more suitable for a complex factual dispute.

Pt 8 for use where unlikely to be 'a substantial issue of fact' (e.g. quantum agreed and sale sole issue). Costs budgeting does not apply to Part 8.

CPR 8.1(2)(a)

CPR 3.12(1)

(CPR 64.3 does not require TOLATA disputes to be issued under Pt 8.)

6 Issuing under Part 7

Use Form N1. Claimant Upon issue PD 7A

Particulars of Claim (PCs) to be attached or served within 14 days of service of claim form.

Claimant Upon issue or within 14 days of service of claim form

CPR 7.4(1)

TOLATA PCs must deal with / contain the following:

• Identify land (by reference to title number or plan where necessary)

• State whether residential premises

• If claim based upon written agreement, attach documents demonstrating written agreement

• If claim based on oral agreement 'set out ... words used and state by whom, to whom, when and where spoken'

• Where claim based upon agreement by conduct specify 'the conduct relied on and state by whom, when and where the acts constituting conduct were done'

PD 16, paras 7.1 & 8.2

• Set out any allegation of fraud*, illegality, misrepresentation, breach of trust, notice or knowledge of a fact, or details of undue

*Note Medcalf v Mardell [2002] UKHL 27, [2003] 1 AC 120

influence

• Express discussions '...should be pleaded in the greatest detail, both as to language and circumstance'

• State reliance upon intentions/agreement and detrimental conduct

• S. 15(1) TOLATA matters, including grounds for sale

• Engagement (if relevant) • Estoppel (if relevant) • Don’t overlook ownership of

high value chattels, policies and cash in bank accounts

• Equitable accounting • Costs • Interest (if relevant)

Per Waite J in H v M (Property Beneficial Interest) [1992] 1 FLR 229

Mark proceedings 'Chancery Business' if issued in county court.

Claimant Upon issue PD 7A, para 2.5 Civil Proceedings Fees Order 2008, Schedule 2

Fee payable High Court £528 County Court £308

Claimant Schedule 1 to Civil Court Proceedings Fees Order 2008

7 Issuing under Part 8

Use Form N208.

Requirement:

• To confirm that Part 8 applies Claimant Upon issue CPR 8.2(a)

• State question to be determined, legal remedy sought and basis for remedy.

Claimant Upon issue CPR 8.2(b)

• To state what enactment applies, e.g. TOLATA

Claimant Upon issue CPR 8.2(c)

• File evidence in support of claim at time of issue

Claimant Upon issue CPR 8.6 and PD 8A, para 7.1

This procedural route is not further described in this Table.

8 Service

4 months from date of issue if within the jurisdiction, 6 months from issue if

Claimant After issue CPR 7.5

outside jurisdiction.

PCs when served must be accompanied by Form for Defendant to admit or defend the claim and to acknowledge service.

Claimant Upon service of PCs CPR 7.8

9 Responding to Part 7 Claim

Defendant (Dft) must:

• File an admission, or Dft 14 days after (PCs of Claim

CPR 14

• File a Defence, or 14 days after service of PCs, or if ack of service is filed, 28 days after service of PCs. Provision for extension by agreement but only for up to a further 28 days

CPR 15

• File an Acknowledgement of Service

14 days after receipt of PCs

CPR Part 10

10 Counterclaim

Does Dft wish to bring any counterclaim arising out of relationship?

Dft When Defence is served

CPR 20

11 Allocation

If Defence filed, a court officer provisionally allocates claim to most suitable track. (TOLATA proceedings will almost invariably be allocated to the Multi-Track.)

Court When Defence is filed CPR 26.3(1)

12 Multi-track case management

Notice of proposed allocation, issued by court, requires parties to agree or propose directions.

Court To issue following filing of Defence

CPR 26.3(1) and CPR 29.1 and 29.4

Directions

To file and serve completed directions questionnaires (formerly known as 'allocation questionnaires') in Form N181.

If in RCJ and dispute concerns region outside of London, parties will have to justify why case cannot be heard in regional specialist court.

Each party

As specified in court order, likely to be at least 28 days after service of notice of proposed allocation.

To file agreed or proposed directions based upon model directions.

Each party

7 days before CMC. CPR 29.1(2), 29.4

But note, bespoke Chancery case management directions in Form CH1 and Additional Draft case management directions in Form CH2

Form CH1

Form CH2

In Business and Property Court now use bespoke template

Business and Property Courts' Standard Directions Template

Disclosure reports

Parties must file and serve disclosure report in Form N263 not less than 14 days prior to CMC.

Each party

Not less than 14 days before CMC.

CPR 31.5(3)

Parties must meet in person or by telephone 7 days prior to CMC and seek to agree disclosure.

Each party

Not less than 7 days before CMC

CPR 31.5(5)

If parties agree disclosure and court considers disclosure proposal appropriate the court may approve them without a hearing.

Prior to CMC CPR 31.5(6)

Costs budgeting on Multi-Track

For all Multi-Track cases, unless the claim is under £50,000 or costs are less than £25,000, issued after 22 April 2016, each party must file and serve a costs budget in Precedent H.

Each Party (except litigants in person)

21 days before CMC CPR 3.12 to 3.18, PD 3E

Agreed budget discussion reports (Precedent R) must be filed 7 days prior to CMC.

7 days prior to the CMC

CPR 3.13(2) PD3E 6A

If claim worth less than £50,000 or costs less than £25,000 then Precedent H to be filed with directions questionnaire and limited to front page only.

CPR 3.13(1)(a) and PD3E 6(c)

Note informal practice guidance dated 20 October 2016 by Master Bowles which permits parties to file page 1 of Form H where parties are ad item on costs and they are clearly not out of the norm. This is permissible even if costs greater than £25,000.

Note particular encouragement to make costs management order for TOLATA cases.

PD3E 5(c)

(Note new wording for statement of truth for costs' budget post 22 April 2014.)

PD 22.2.2A

NOTE: In default of filing budget, party will be limited to court fee.

CPR 3.14

From 6 April 2015, a party beats a Part 36 offer may recover 50% of their assessed costs, despite otherwise being limited to recovery of court costs.

Parties should seek to agree budgets.

CPR 36.23

Court 'may' (i.e. is likely to) make a 'Costs Management Order' to record agreement or, to the extent budget is not agreed, review, revise and record approval of revised budgets.

Once Costs Management Order has been made the court, when assessing costs on the standard basis, will have regard to budget and not depart from it 'unless satisfied there is good reason to do so'.

PD 3E 5(c)

Form CH40 for Costs Management Order for use where budgets not wholly agreed.

13 Case management conference (CMC)

If parties agree and court approves, or if court issues its own directions, then the CMC may be vacated.

Parties and court

Following receipt of allocation notice

CPR 29.4

Court will consider costs budgets at first CMC. Subsequent hearings purely to consider budgets are 'costs management conferences.'

CPR 3.13 to 3.16

Parties should use MOJ 'model directions' as their starting point when drafting civil directions orders. For TOLATA cases see 'Basic MT [Multi-Track] single joint expert paper order'.

Parties and court

When directions issued.

CPR 29.1(2)

And bespoke Chancery Forms CH1 and CH2

Form CH1

Form CH2

In Business and Property Court there is now a bespoke directions form

Business and Property Courts' Standard Directions Template

Preparation for CMCs:

• Fully briefed legal representative to attend

Parties In advance of CMC CPR 29.3

• Case summary normally not more than 500 words

• If expert evidence is sought, bring particulars of expert etc (see Expert Evidence below)

• If likely to be seeking an

PD 29 5.1 to 5.9

opposed non-standard direction, apply for it to be heard with CMC

For further general guidance about the conduct of Chancery Matters – see Chancery Guide (new edition 2017).

Note also:

Chancery Guide

'No bundle, no hearing' PD before Chancery Masters, in force 1/10/14

Chancery Masters’ Bundle Practice Direction.

Chancery Masters’ and Judges Orders PD, in force 2/1/15

Chancery Masters & Judges Orders Practice Direction

14 FDR as part of CMC?

From 1/10/2015 CPR 3.1(m) provides expressly for Early Neutral Evaluation and see Seals v Williams [2015] EWHC 1829 (Ch) paragraphs 5.6 to 5.17, 5.30, 10.16 and 14.17 - 14.21 of Briggs LJ's Final Report on Chancery Modernisation.

CPR 3.1(m)

Briggs LJ's Final Report on Chancery Modernisation

15 Disclosure and Inspection

For all cases in which first CMC takes place after 16 April 2013 there is a new menu of disclosure options which the court may order:

• No disclosure • One party discloses

documents relied upon and at same time requests any specific disclosure from (an)other party

• Disclosure, where practicable, on issue by issue basis

• Each party discloses any documents which it is reasonable to suppose may contain information which enables that party to advance its own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences

• Standard disclosure • Any other disclosure that the

court considers appropriate • Note disclosure pilot in

Business and Property Courts

Party Following CMC order CPR 31.5(7)

(see introduction above)

Court may give directions as to how disclosure is given.

CPR 31.5(8)

16 Interim applications

E.g. for specific disclosure, experts, amendments to statement of case, re-timetabling and any arguments concerning whether trial should take in place in private.

Each party

When required CPR 23

Relief from sanctions is dispensed restrictively. Andrew Mitchell MP v News Group Newspapers Limited [2013] EWCA Civ 1537; and Denton & Ors v TH White Ltd & Ors [2014] EWCA Civ 906.

CPR 3.9

17 Expert evidence

Restricted to that 'which is reasonably required to resolve proceedings' (cf. more onerous requirement of 'necessary' under FPR 25).

CPR 35.1

Full particulars (including costs) required when seeking leave to instruct single joint expert ('SJE'). Instruction of SJE followed by questions is the norm.

Party seeking expert

At CMC/ Application CPR Part 35.4(2)

Full particulars (inc. costs) required when seeking leave to instruct a sole expert to contest SJE.

SJE report followed by questions is the norm. If dissatisfied with SJE then must have asked questions, and have reasons which are 'not fanciful' if seek to instruct further sole expert.

Either party

After questions asked of expert

Daniels v Walker [2000] 1 WLR 1382.

18 Lay evidence

Parties must serve statement of evidence containing the facts upon which they wish to give oral evidence. Court may limit issues in statement.

Each party

Following disclosure and inspection, as per court order

CPR 32

19 Pre-trial checklist

Each party is required to file a pre-trial checklist in Form N170 (unless the court dispenses with this requirement) confirming that the matter is ready for trial. If both parties fail to comply the case will be struck out.

Each party

As required in the checklist/ordered by the court

CPR 29.6

20 Bundle and skeleton arguments

FPR PD 27A does not apply to proceedings conducted under the CPR. See instead CPR 7.9 and Chancery Guide.

CPR 7.9 and Chancery Guide

See also 'No bundle, no hearing' PD before Chancery Masters, in force 1/10/14.

Chancery Masters’ Bundle Practice Direction.

Lodging of bundle Claimant Between 7 and 3 days before trial

CPR 39.5

Legal representatives should check local court arrangements for lodging skeleton arguments: often a locally designated 'skeletonarguments@...' address.

Each party

2 days before trial or 1 day prior to judge’s pre-reading

Chancery Guide

21 Trial

Likely to be in public. If concerned about confidentiality then consider IFLA arbitration.

CPR 39.2 and W v M (TOLATA Proceedings; Anonymity) [2012] EWHC 1679 (Fam), [2013] 1 FLR 1513

22 Costs

• The general rule is that costs will be paid by the unsuccessful party, but the court may make a different order

• Part 36 or other without prejudice as to costs offers may affect whether a party is said to be successful or not.

• Court may make issues-based costs award

• Court can take into account litigation conduct in deciding what order to make

CPR 44

CPR 44.2(2)

CPR 44.2(4)

• If Claimant beats Part 36 offer then costs discretion largely removed and enhancements added, including costs assessed on an indemnity basis (which do not have to be proportionate but must still be reasonably incurred)

CPR 36.17(3) & (4) and CPR 44.3(1) and (2)

23 Form of order

Court may: Court TOLATA ss. 13 and 14

• Make an order relating to the exercise by the trustees of any of their functions

• Declare the nature or extent of a person's interest in property under a trust

• Exercise consequential powers arising upon the exclusion or restriction of a beneficiary's right to occupy subject property

• Order land or part of it, to be sold, mortgaged, exchanged or partitioned

• Order possession to be delivered up

Court CPR 40.16-17

Court does not appear to have power to require one party to buy out the other but may give one party the first opportunity to bid to purchase.

TOLATA s. 14(2) and Bagum v Hafiz & Hai [2015] EWCA Civ 801

Court has extensive power regarding mode of sale and as to who may bid for land ordered to be sold.

PD 40D

Chancery Masters and Judges Orders PD, in force 2/1/2015

Chancery Masters' Orders Practice Direction.

Many applications will be determined by a civil consent order, in the form of a 'Tomlin' order, the wording of which is as follows:

'The Claimant and Defendant having agreed to the terms set out in the Schedule hereto, IT IS ORDERED THAT all further proceedings in this claim be stayed except for the purpose of carrying such terms into effect. Liberty to apply as to the carrying such terms into effect.'

The Schedule may contain provisions which go beyond the court's jurisdiction under TOLATA and may appear to resemble a Financial Remedy consent order; but the parties are agreeing contractual terms rather than giving undertakings to the court.