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Courts uphold Tomlin order compromising defence to possession claim

  • United Kingdom
  • Financial services disputes and investigations


Heaney v McEvoy [1] The Court of Appeal (Northern Ireland) has recently upheld the decision at first instance to refuse to set aside a Tomlin Order whereby the appellants had agreed not to defend possession proceedings brought by the respondent.


The plaintiff had been appointed executrix of the estate of Grace McEvoy. The deceased’s will provided for her property to be sold and the proceeds divided between her twelve children, and required the defendants (i.e. the daughter and granddaughter of the deceased, in occupation) to vacate it. The plaintiff issued proceedings on behalf of the Estate against the defendants seeking an order for possession of the property. In the meantime, the defendants commenced proceedings against the estate for a reasonable provision under the Inheritance (Family Provision and Dependents) Order (Northern Ireland) 1979.

The inheritance claim was ultimately settled by means of a Tomlin Order whereby the defendants agreed to withdraw their inheritance claim and undertook not to defend the plaintiff’s possession claim. However, the defendants did not vacate the property and sought to defend the possession proceedings despite the earlier agreement not to do so. They claimed they had been tricked into signing the Tomlin Order by their counsel and alleged that the Will was fraudulent. The defendants sought to set aside the Tomlin Order.

In a judgment delivered on 25 January 2018, [2] the Judge at first instance described the defendants’ allegations as "wild and scurrilous" and dismissed them as baseless or irrelevant. It held that there was "no dispute that the defendants had signed the terms that resulted in the Tomlin Order being made"; they were of full age and had legal advice, and were bound by their signatures "whether they bothered to read the terms or not". The Judge further considered that, if the defendant’s legal team had failed in their duties, any complaints would need to be directed to their solicitors and counsel. If the defendants intended to set aside the Tomlin order, they would have needed to "either commence new proceedings to have the agreement set aside", or "seek leave to appeal to the Court of Appeal out of time".

Restating the principle that "the whole system of civil justice depends on finality", the judge concluded that, when a case was compromised as it was in this instance, "the litigants must abide by the compromise agreement". It was held that there were "no grounds disclosed that would allow the defendants in this case to set aside the compromise agreement they signed". Should a claim to set aside the Will be successful, the outcome would be the same; as there was no previous Will, the Estate would have to be dealt with on an intestacy, with each of the twelve siblings receiving an equal share of the property. The Judge further held that there was no basis on which the defendants could defend the possession proceedings, as they had no legal or equitable right to remain in the property. Therefore, the plaintiff as executrix was entitled to possession of the property to sell it and to divide the proceeds of the sale equally among the deceased’s children, as directed in the will.

The defendants appealed the decision to the Court of Appeal. The case was sent back to the trial Judge to hear the defendant’s application to set aside the Tomlin Order on grounds of fraud, namely that the plaintiff as executrix was not authorised to act as a solicitor in Northern Ireland (only in the Republic of Ireland). In This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.

a decision delivered on 13 October 2017,3 the court considered that a Tomlin Order did not require a separate action to be set aside on "usual invalidating grounds" including fraud, mistake and duress. The court stated that "fraud is a particularly serious allegation and should not be made unless there is evidence to substantiate it". In this respect, it was held that the defendants had not been able to show "reasonably credible material" making a prima facie case of fraud against the plaintiff. The fact the plaintiff was not authorised to practice as a solicitor in Northern Ireland was not relevant to the terms of the Tomlin Order, which had been negotiated by counsel. In addition, there was no evidence the defendants had been pressurised or tricked by their legal team into signing the agreement. Consequently, the court concluded the defendants were "unreliable historians" and, judging there were no vitiating factors affecting the agreement, dismissed their application to set aside the Tomlin Order.

The defendants appealed to the Court of Appeal.


The Court of Appeal heard two appeals against rulings made by the trial judge. Since the case involved personal litigants, the Court of Appeal conducted the appeal as a rehearing by way of review of the trial, and concluded there was no basis to interfere with the findings of the judge at first instance. Therefore, the Court of Appeal held that the trial judge had been entitled to refuse to set aside a Tomlin Order where there was no evidence that the agreement entered into the parties was vitiated by any invalidating grounds. The court restated the fact that "the appellants have put forward no basis upon which they are entitled to resist that application [for possession]. They have no answer to the possession claim". The appeals were dismissed.


This recent Court of Appeal (Northern Ireland) decision is a reminder of the courts’ reluctance to interfere with valid Tomlin Orders agreed by parties to compromise a dispute. Save for exceptional circumstances amounting to vitiating grounds such as fraud, mistake and duress, which were not established in this case, a compromise agreement entered into by parties to litigation will generally be upheld by the courts.

 1 [2018] NICA 4, 25 January 2018.

2 Heaney v McCartney [2017] NICh 6, 21 February 2017.

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