DIFC Court of Appeal Rules on Enforcement of Settlement Agreements in Tomlin Orders
The DIFC Court of Appeal has dismissed an appeal in Kapova v Makovini & Another, laying down the law on Tomlin orders for the first time. The ruling confirms that the DIFC Courts can enforce a settlement within a stayed action, even where the consent order departs from the classic Tomlin form.
Kartikey Mahajan, Partner at Khaitan & Co, successfully represented Miloslav Makovini and Pharm Trade Holding Ltd before the Court of Appeal. The dispute arose from a settlement agreement reached at the end of a DIFC trial. The parties' consent order stayed the proceedings but did not strictly follow the Tomlin form prescribed by RDC 36.29. The appellant argued that the DIFC Courts therefore could not enforce the settlement in the existing proceedings.
The Court of Appeal upheld the first-instance decision. It held that the DIFC Courts have jurisdiction to lift a stay and enforce a settlement agreement, even where the consent order is not in strict Tomlin form, emphasising substance over form. The immediate judgment was properly entered on the settlement sum. The misrepresentation and economic duress arguments by the appellants failed, with no particularised case of fraud and no identifiable unlawful threat. The clients were entitled to their costs.
Kartikey Mahajan was instructed to appear as Lead Counsel in the appeal stage by the instructing law firm SK Legal Consultants. He was assisted by Satjit Singh Chhabra (Principal Associate) and Pranav Krishna (Associate).
Kartikey Mahajan said: "The Court of Appeal engaged closely with established common-law authority since early 1900's in reaching its decision, which is precisely why international parties increasingly trust the DIFC Courts to deliver predictable, principled outcomes."
Source: SCC Times