ENGLAND & WALES Law and Practice Contributed by: Damian Taylor, Olga Ladrowska, Lawal Ijaodola and Eleanor Higginson, Slaughter and May
terms of their agreement. A Tomlin order allows litigants to include the terms of their agreement in a confidential schedule. 8.3 Enforcement of Settlement Agreements The process of enforcing a settlement agree- ment depends on the procedure followed when the settlement agreement was entered into. If the original claim has been discontinued, a party seeking to enforce the terms of the settlement agreement will need to issue a new claim in order to do so. If there is a Tomlin order in place and the original claim has been stayed, the enforce- ment process involves the original claim being restored and an order being obtained to compel compliance with the relevant settlement term. If the order is made and breached, enforcement can follow in the usual way, including by an application for contempt of court. 8.4 Setting Aside Settlement Agreements Settlement agreements, as contracts, can be set aside due to factors such as illegality, mistake, misrepresentation, duress and incapacity. 9. Damages and Judgment 9.1 Awards Available to the Successful Litigant The court has discretion to grant a wide range of remedies to the successful litigant, including damages, declarations, injunctions and specific performance. 9.2 Rules Regarding Damages The primary objective of damages in commer- cial cases is to compensate the claimant for the loss suffered and to restore them to the position they would have been in had the wrongful act not occurred. In contract and tort law, the basic
rule for damages is that they should place the claimant in the position they would have been in had the contract been properly performed or the tort not been committed. Punitive damages are not commonly awarded but they may be granted in exceptional circum- stances in some tort cases. There are no specific rules limiting the maximum amount of damages. However, not all losses that flow from a breach of contract or tort will be recoverable. The rules on legal causation, remoteness, mitigation and contributory negli- gence may restrict, and in some circumstances prevent, any damages being awarded. In some cases, litigants may agree liquidated damages, which will be a fixed sum payable in the event of breach of contract. 9.3 Pre-judgment and Post-judgment Interest The court may award both pre-judgment and post-judgment interest to the successful litigant, based on either a contractual agreement or stat- utory provisions, with specific parameters guid- ing the applicable rates. The statutory interest rate is typically set at 8% per annum, although courts have discretion to adjust this rate based on the circumstances of each case. Factors such as the conduct of the litigants and the nature of the claim may influence whether inter- est is awarded and at what level. Post-judgment interest continues to accrue until the full judg- ment amount is paid, with interest compounding if payment is late. 9.4 Enforcement Mechanisms of a Domestic Judgment Several mechanisms are available for the enforcement of a domestic judgment, depend-
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