Ensuring eSignature Lawfulness for Polygraph Consent in United Kingdom

How to eSign a document: eSignature lawfulness for Polygraph Consent in United Kingdom

welcome back in this video i'm going to talk about consent orders and tomlin orders neither of which you may have heard of before but first of all if you are new here please do subscribe and hit the bell icon because that means you get notifications of new videos so first of all it's important to understand what an order is in the first place so every time you go to court you're effectively asking the court to make a decision which ultimately means two disputing parties can't agree on a decision between each other so they need the intervention of a third party which in this case is the court which has the authority to adjudicate and make a judicial decision not necessarily as to who is right and who is wrong but what the decisions should be on the given set of facts and law and the dispute at hand so if you think of it as a simple financial or contractual dispute one person may feel like they are owed the return of money by another person for a bad job whereas the other party perhaps a company feels like the individual should pay for the remainder of the work or some work that they've already done that hasn't been paid for so you end up in this stalemate and nobody can really agree on what to do next so they need the intervention of an authoritative third party to make that decision if on the other hand you think of it in a criminal sense you've got the prosecution saying that the accused or the suspect or the defendant has committed a certain crime whereas the defense are obviously putting forward either arguments in defense that this person didn't do it or simply challenging the evidence of the prosecution saying that their evidence isn't good enough to secure a conviction you go to court and the court which includes the jury remember makes a decision on the facts and law as to whether or not this defendant actually committed this crime in the case of a crown court trial where you have a judge and a jury the judge will be deciding the law and how the law applies to the given case whereas the jury will decide on the facts in other words they will make a finding of fact as to what actually happened so with that in mind when it comes to consent orders it is what it sounds it is an order for what the parties have consented to so for example if two parties are in a live claim and it is going through court and there's a pending trial but in the process they have discussions and they are actively trying to resolve the issues as they are under a duty to do all parties are under an ongoing duty to cooperate with each other to try to resolve the issues because court is supposed to be considered a final resort so in this scenario if two parties do find a common ground maybe neither of which are particularly happy with it but they are willing to live with it they might draw up some kind of agreement between each other this would be known as a consent order essentially what it means is that both parties usually with the assistance of lawyers will agree upon a form of words that represents the agreement that they've reached in order to avoid going to trial and leaving it to the court to decide this document known as a consent order is then signed by each party and submitted to the court for approval now at this point it is still down to the court to approve the consent order because the court might take the view that it is entirely one-sided and unfair and perhaps biased against one of the parties more often than not however the court will approve the order because if both parties have signed it it's an indication that they are happy with the agreement that's been reached and then that will become a formal order of the court so let's have a look at what this means once the court has approved the consent order the court will seal the order which means it becomes an order of the court so although the agreement came about from discussion between the parties and is reduced to writing in the form of a consent order it then becomes an order of the court which means it is enforceable as an order of the court essentially it becomes a new contract between the parties as to what they've agreed to and it is enforceable without coming back to court and issuing fresh proceedings let's say for breach of contract of the original claim or indeed for enforcement of these terms it simply becomes enforceable as an order of the court now as you can imagine there are some caveats and deviations to this for example in family cases there need not be an ongoing live case before the court in order for parties to come to an agreement that they formulate in a consent order let's take the scenario where two parties with parental responsibility of a child have separated and cannot agree the parental responsibility or custody sharing of that child in this case it might look like they are headed to court but if before they actually issue an application for a child arrangements order let's say that they have discussion between lawyers and they do come to an agreement which they are both prepared to put down in writing that might originally be called a parenting agreement plan however by itself because it doesn't meet the necessary requirements of a contract this parental agreement plan cannot be enforced legally because it's not an enforceable contract so instead what parties might do is put these agreements down in what is called a consent order and then submit it to the court for approval and then it does become an order of the court for child arrangements that is set out within the body of that consent order again the court is going to examine that order first it won't just rubber stamp any order that's put in front of it it will consider first and foremost the interests of the child before considering the interests of each parent but the subject of family law under the children act is a complicated one and i will leave that to another video but that is broadly speaking how consent orders fit into family law as well now just to bear in mind if it is not a children act case let's say it is just a child or protected party that is involved in ordinary litigation a consent order is generally not an appropriate order now as to the contents of the consent order let's say in an ordinary money claim there is nothing wrong with the order saying that this is in full and final settlement of the dispute between the parties now the wording in the body of the order is something usually left to lawyers or indeed the judge might intervene and change the wording because ultimately the court doesn't want to order a party to accept a certain amount of money nor does the court want to order a party to withdraw or discontinue a claim what it is likely to say is that party a is going to pay party b a certain sum of money in final settlement of any actions arising out of the facts of this claim ordinarily such an order will also include a provision for costs in other words either parties are to bear their own costs or again party a is going to pay certain costs or party b is going to pay certain costs but otherwise if there is no such term the court is not going to apply one by default and it will be assumed that each party is going to pay their own costs finally there's going to be a time frame involved as to when such monies and costs are going to be paid and the usual time frame in any such order is 14 days if there are good arguments good reasons or a general agreement sometimes you will find 28 days but ordinarily it's one of those two dates so how then does this differ from a tomlin order well a tomlin order is very similar to a consent order but it has the distinct difference where parties do not necessarily want the contents of the agreement to be within the body of the order and there's an important reason for this the simple explanation here is if the parties want to keep the details of the agreement reached between them confidential then they will bring the proceedings to a close by way of a tomlin order because the agreement itself will usually be annexed to the order but it won't be filed at court in other words it will remain confidential between the parties the usual provisions that you will find in the tomlin order are that proceedings are stayed which means they are put on hold stopped or paused subject to the details of the agreement that's been reached between the parties it should also say that each party has permission to apply to the court to enforce those terms without the need to issue new proceedings and again the order should also provide for a provision of costs whether that is that parties bear their own costs or that one party pays another the obvious benefit of a tomlin order aside from the confidentiality is obviously that it is more flexible and it can go beyond the bounds of the original dispute it also allows parties to be more flexible because if one person claims money from another person then you are limited to the dispute over money or provision of services but instead if one party were to offer something completely different and outside of the scope of the original claim but this other party accepts it then this could be drawn up in what is effectively a new contract but it is terms that are confidential but become enforceable by way of a tomlin order so if you find yourself in the position where you're in an active court case and you want to draw it to a close instead of going to court you might consider a consent order or you might consider a tomlin order either way i would strongly suggest that you seek legal advice because the terms of that order effectively become the new contract that you would then seek to enforce so as with any other contract you want to make sure firstly that it is wholly compliant but secondly that it reflects what it is that you've agreed and it's going to be enforceable because if there's a problem with it later on you're not going to know about it until much later particularly if it is in the form of a tomlin order because the court won't necessarily look into those details because it isn't going to be filed at court so as usual i'm sure you'll appreciate this is not a fully comprehensive video on consent orders and tomlin orders it just gives you an idea of what they are and how they are used so as always please seek formal legal advice but i'm happy to answer some general questions in the comments box below and once again thank you so much for watching i'm really grateful for your time shared watching this video today and i'll see you next time