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 had to be provided.
Held: The liberty to apply did not allow for the variation of the order in the manner applied for.
Sommervell LJ spoke as to the scope of the express liberty to apply: ”Liberty to apply’ is expressed, and if not expressed will be implied, where the order drawn up is one which requires working out, and the working out involves matters on which it may be necessary to obtain the decision of the court. Prima facie, certainly, it does not entitle people to come and ask that the order itself shall be varied.’
Denning LJ said: ‘If there were an unforeseen change of circumstances, for instance, if the wife were left by will another house, or if she took an adulterer to live with her in this house, I should have thought that the ‘Liberty to apply’ would enable the court to remedy the position.’
Judges:
Sommervell LJ, Denning LJ
Citations:
[1951] 2 KB 725
Cited by:
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 11 May 2022; Ref: scu.412295