DIFC Court of Appeal (H.E. Justice Robert French, H.E. Justice Thomas Bathurst and H.E. Justice Roger Stewart), 14 October 2026
On Wednesday, the DIFC Court of Appeal dismissed the appeal, confirming that a settlement agreement reached during ongoing proceedings could be swiftly enforced. The judgment explored issues such as alleged misrepresentation, economic duress, summary judgment and fresh evidence on appeal. Most notably, it shed light on the true reach and impact of a ‘Tomlin order’, clarifying whether settlements must always follow the traditional Tomlin format to be enforced within ongoing cases.
The decision at first instance
At first instance, Cooke J had lifted the stay and ordered immediate payment of an accelerated EUR 1 million settlement, finding the Settlement Agreement enforceable within the ongoing proceedings regardless of the Consent Order’s format. The Court of Appeal confirmed this outcome.
The parties settled part way through trial and the action was stayed by consent. The order recited the settlement agreement and gave a general liberty to apply, but it did not schedule the terms or qualify the stay “except for the purpose of carrying such terms into effect”, as RDC 36.29 contemplates. When the first instalment went unpaid, the judge lifted the stay and entered immediate judgment for the full settlement sum. The Appellant’s principal ground was that, the order not being in Tomlin form, the court had no jurisdiction to enforce the settlement within the existing action at all.
A stay does not end the action
It is striking that, almost a century after Tomlin J’s Practice Note, the point had attracted so little judicial authority. The Court of Appeal, however, encountered little difficulty in resolving it. Unlike a discontinuance or judgment, a stay does not terminate an action; an order referring to the settlement and preserving liberty to apply must therefore envisage that the stay may be lifted for purposes connected with the settlement (paras 38 and 41). The Appellant’s own concession that the stay could be lifted to revive the original claim was, in the Court’s view, particularly revealing. Any such revival would inevitably bring the settlement’s validity and effect into question, making it untenable to exclude the settlement from the proceedings (paras 42 to 44).
The Court’s rationale is that parties who wish to keep enforcement out of the original action may agree to arbitration or to another court’s exclusive jurisdiction. Short of that, there seems to be no practical purpose in requiring a separate claim in the same court (para 52).
Jurisdiction and discretion
The Court drew a careful distinction between the existence of jurisdiction and its exercise. Even in the case of a conventional Tomlin order, the court is under no obligation to enforce the parties’ agreed terms; it retains full discretion as to whether and in what manner, enforcement should occur (para. 35).
None of this makes a properly drawn Tomlin order any less advisable. It does mean that a departure from the form will not, of itself, be fatal where the proceedings have been stayed rather than brought to an end and the order refers to the settlement.
SK Legal Consultants acted for the Respondents, instructing Kartikey Mahajan of Khaitan & Co.
The judgment is available here.
This publication does not provide any legal advice and is for information purposes only.