Charging order v Tomlin Order

Hughmans Solicitors v Central Stream Services Ltd (in liquidation) and others [2012] EWCA Civ 1720, [2012] All ER (D) 260 (Dec); NLJ 11 January

The appellant was a firm of solicitors. It acted for D, who was the registered proprietor of a property. Proceedings were brought against D by the first respondent company. Those proceedings were compromised and a Tomlin Order was made. Under the Tomlin Order, the property was to be sold by D, and £100,000 of the proceeds were to be paid to the company. Following a dispute about unpaid fees, the solicitors brought their own proceedings against D. They obtained a charging order over the property to cover those fees. Notice of the solicitors’ charging order, but not the company’s Tomlin Order, had been entered against the registered title to the property under the Land Registration Act 2002 (LRA 2002). The question arose as to whether the Tomlin Order made in favour of the company should take priority over the charging order made in favour of the solicitors. At first instance, it was held that the Tomlin Order created a proprietary interest in the property and that it took priority over the solicitors’ charging order. The solicitors appealed. Two issues arose. First, whether a Tomlin Order was capable of creating a proprietary interest in property owned by the defendant in the proceedings. Second, if so, whether it took priority over the solicitors’ charge.