REUTERS | Mike Hutchings

Tomlin or not Tomlin: Vanden Recycling Limited v Tumulty and others

A satisfied judgment against one of several joint or concurrent tortfeasors discharges the tort as against all the tortfeasors. The point has been emphasised twice by the House of Lords: in United Australia Limited v Barclays Bank and more recently in Jameson v CEGB.

What does this mean in practice?

The High Court provided an answer in Vanden Recycling Limited v Tumulty and others, which applied this principle to “employee competition” litigation.

The claimant sued three defendants, alleged to be joint tortfeasors. Led by Jonathan Cohen QC, I represented the third defendant. The claimant alleged an overarching conspiracy (which Cox J accepted was the “mothership” of the claims) and sought recompense for a single damage, alleged to have been caused by the entirety of the unlawful conduct.

On 25 June 2015, the court entered a final order, by consent, against the second defendant (the consent judgment). The consent judgment required the second defendant to pay £176,000 in damages plus costs. In due course, the sum was paid and the judgment was satisfied.

The third defendant accordingly applied for strike-out/summary judgment against the claimant. This included the ground that the satisfied consent judgment had extinguished the claim as against the third defendant.

The court agreed, granting the application and entering summary judgment against the claimant.

What are the implications for practitioners?

This decision is merely the latest application of a longstanding principle of the common law. Yet it is a salutary reminder that, when suing multiple tortfeasors (whether joint or concurrent) for the same damage, a satisfied judgment against one will halt the litigation in its tracks as against all the other defendants. This could be a catastrophic outcome for the claimant.

The simple and safe way to avoid this outcome is by instead entering into a Tomlin order (which has scheduled terms taking effect contractually between the parties) rather than a normal judgment or order. Further, the terms of the Tomlin order should expressly reserve the right to pursue other tortfeasors.

Littleton Chambers Jamie Susskind

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