Parties to a settlement agreement scheduled to a Tomlin Order can seek to enforce the terms of the agreement or a remedy for breach of its terms. They cannot resile from the terms agreed.
The High Court has considered the effect of a Tomlin Order in Takhar and others v Mohamed and another [2023] EWHC 2190 (KB).
The case concerned the compromise of disputes relating to the construction by the Mohameds of a multi-layered basement development at their property in Chigwell, Essex, and the effect of those works on their neighbours, the Takhars.
Various claims were issued by the parties and appeals lodged against awards under the Party Wall etc Act 1996. The claims were compromised following mediation as reflected in an agreement scheduled to a Tomlin Order dated 11 May 2016. The order provided for a stay of proceedings with liberty to apply for the purpose of carrying the schedule into effect.
The agreement was in full and final settlement of all matters between the parties and resolution of all disputes under the 1996 Act. It provided that all future disputes would be resolved by an independent surveyor appointed jointly by the parties who should resolve a list of current disputes – including the amount of compensation payable to the Takhars – and any future party wall disputes arising from the works.
Subsequently, an award was made in an aspect of the building works which the Mohameds sought to appeal, arguing that the Tomlin Order characterised the disputes as subject to the 1996 Act, and so subject to the county court jurisdiction. The judge decided that the Tomlin Order took the disputes outside the 1996 Act but that the court did have jurisdiction to consider the Mohameds’ challenge under the liberty-to-apply provision. He treated the appeal as such an application.
The High Court allowed the Takhars’ appeal. The parties intended to exclude the effect of the 1996 Act and to replace it with the independent surveyor procedure set out in the agreement. The Mohameds were estopped from arguing that the 1996 Act applied. The liberty-to-apply provision could not confer on the county court a jurisdiction it did not have.
While the court makes a Tomlin Order, the schedule is a contract between the parties in which the court plays no part. The parties could enforce the terms of the settlement under the liberty-to-apply provision or bring proceedings for breach of its terms under section 15 of the County Courts Act 1984.
Louise Clark is a property law consultant and mediator
