Community Care North East (A Partnership) v Durham County Council: QBD 29 Apr 2010

The parties had settled their dispute and sealed it in a Tomlin Order. The court now asked as to its power to vary such an order. The order required the defendant to reopen a tendering process, but other tenderers now objected, and the council felt unable to give effect to the order.
Held: The court did not have power to vary the order as requested. A schedule to a Tomlin Order sets out an agreement between the parties of the terms of settlement. Once the parties have entered into an agreement the ability to set aside or vary that agreement depends on there being a remedy in relation to that contract. Otherwise the court is only concerned with the meaning of the agreement in the schedule and this depends on normal principles.
The provisions of the CPR have no direct application to the terms of a schedule to a Tomlin Order.
Nor should cases relating to consent orders apply: ‘when it comes to a Tomlin Order, I can see no justification for a general power for the court to vary the terms of the agreement set out in the schedule on the basis that there has been a material or unforeseen change in circumstances after the order was made which might undermine or invalidate the basis of the agreement, unless that would give rise to a power to do so as a matter of the law of contract.’
Even if the court had such a power it should not be exercised in this case. There were no new circumstances, and the order had envisaged a possible re-run but with no award after it. However the court did declare that the schedule did not prevent the council exercising any other powers it had to terminate the procurement process.

Ramsey J
[2010] EWHC 959 (QB), [2012] 1 WLR 338
England and Wales
CitedPractice Note 2-Jan-1927
Tomlin J set out the appropriate practice on attaching a private schedule to an order made by consent. The schedule records the terms of the settlement agreed between the parties but which terms are not ordered by the court and are not enforceable . .
CitedDashwood v Dashwood 1-Nov-1927
Tomlin J set out the the practice on making an order such as would keep the proceedings alive only to the extent necessary to enable a party to enforce the terms of the settlement.
Held: A provision in the order which required one party to . .
CitedCroft House Care Ltd and Others v Durham County Council TCC 27-Apr-2010
. .
CitedRopac Ltd v Inntrepreneur Pub Co and Another ChD 7-Jun-2000
There had been a consent order in the terms of an unless order giving the landlord an order for possession unless the tenant paid sums by a certain date, time being of the essence. The order was not complied with and the tenant applied for a . .
See alsoCroft House Care Ltd and Others v Durham County Council TCC 27-Apr-2010
. .
CitedWeston v Dayman CA 7-Jun-2006
The Court considered the interpretation of a consent order on an application to vary its terms. The terms were incorporated within a consent order. It was argued that the variation could be based on CPR 3.1(7) which provides that the Court has power . .
CitedCristel v Cristel CA 1951
H and W settled a dispute with an agreement for possession of the matrimonial home to be suspended until H provided suitable alternative accommodation. The order gave liberty to apply. H wished to vary the order as to the type of accommodation which . .
CitedS v S (Ancillary Relief: Consent Order) FD 4-Mar-2002
An order for ancillary relief had been made by consent. Later the House of Lords issued a judgment which changed the law which had been the basis of the decision to accept the settlement. The wife now sought to set aside the consent order, and . .
CitedSirius International Insurance Company (Publ) v FAI General Insurance Limited and others HL 2-Dec-2004
The appellant had taken certain insurance risks on behalf of the respondents, subject to banking indemnities. Disputes arose and were settled under a Tomlin order, which was now itself subject to challenge.
Held: The appeal was allowed. The . .
CitedEmbassy Limousines and Services v Parliament Europeen ECFI 17-Dec-1998
ECJ 1 Procedure – Reference to the Court of Justice on the basis of an arbitration clause – Condition – Existence of a valid contract – Contract governed by Directive 92/50 requiring a written agreement – . .
CitedMetalmeccanica Fracasso SpA, Leitschutz Handels- und Montage GmbH v Amt der Salzburger Landesregierung fur den Bundesminister fur wirtschaftliche Angelegenheiten ECJ 16-Sep-1999
Where a tendering process completed leaving only one tender remaining, the contracting authority was not required to award the contract to the only tenderer judged to be suitable: ‘In a context different from that of the present case (there were . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 12 January 2022; Ref: scu.409224