Tomlin Order in UK Law

In my judgment where the terms are contained in a schedule to the Tomlin Order the position is different from the terms being incorporated as part of a consent order. The court approves and orders the consent order in the first case but only approves and orders the terms of the order but not the terms of the schedule in the second case.

In relation to the terms of the agreement incorporated in the schedule to the Tomlin Order, other considerations apply. The terms of the schedule are not an order made by the court. The court obviously has the ability to interpret that agreement on well known principles of interpretation, as set out in Sirius and would have to do so when it was asked to take any enforcement action under the standard liberty to apply for that purpose in the Tomlin Order.

Kras further relies upon various differences between a consent order and a Tomlin order in terms of approval, breach, enforcement, variation, confidentiality and appeal. Thus a court will not make a consent order unless satisfied that it has power to do so, whilst it has no right to disapprove a Tomlin order and such an order can include matters that the court has no power to order.

For my part, I agree with the analysis of Ramsey J in Community Care North East v Durham CC [2010] EWHC 959 (QB) that the CPR have no application to the schedule to a Tomlin order, which indeed is not an order of the Court at all. A different principle applies to the curial part of the order.

The aim of the inquiry is not to probe the real intentions of the parties but to ascertain the contextual meaning of the relevant contractual language. The inquiry is objective: the question is what a reasonable person, circumstanced as the actual parties were, would have understood the parties to have meant by the use of specific language. The answer to that question is to be gathered from the text under consideration and its relevant contextual scene.

In my judgment, the judge was correct to reject FAI's extreme submissions based on paragraphs 4 and 5 of the schedule to the Tomlin order. The short point is that paragraphs 4 and 5 cannot, in my view, be read as leaving open for future contention that which paragraph 1 compromised. It did not purport to determine questions arising out of the letter of credit.

Mr Vos accepted that the second condition of the 3 rd September 1999 agreement was not and is not fulfilled. He accepted that the first condition was not fulfilled before the Tomlin order. He accepted that the literal words of paragraph 1 do not express an agreement by FAI that Sirius should pay Agnew's claim. Creative construction or implication is required to interpret it as doing so.