Varying a Tomlin order

Community Care North East (a partnership) v Durham County Council [2010] EWHC 959 (QB)

(1)The court does not have the power to vary the terms of the settlement agreement in the schedule to a Tomlin order. Although in principle the provisions of CPR 1.1, 1.4 and 3.1(7) give the court power to vary or revoke a consent order and the order part of a Tomlin order, they have no application to the terms of the agreement in the schedule to a Tomlin order which had been freely entered into between the parties as a binding contract, Weston v Dayman [2006] EWCA Civ 1165, [2008] 1 BCLC 250 and Ropac Ltd v Inntrepreneur Pub Co (CPC) Ltd [2001] CP Rep 31 Ch D applied. Further, although the court’s power in matrimonial proceedings to vary the terms of a consent order on the basis that there had been a material or unforeseen change in the circumstances after the order was made might be extended to consent orders generally, there was no justification for a general power for the court to vary the terms of the agreement set out in the schedule to a Tomlin order on that basis. That was not the effect of a Tomlin order where the agreement in the schedule did not form part of the terms ordered by the court.