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Contract (Tomlin Orders): If one gives an "undertaking" in a…

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Contract (Tomlin Orders): If one...
Contract (Tomlin Orders): If one gives an "undertaking" in a Tomlin Order, as opposed to a promise or warranty, if one breaches that undertaking, does that have the same effect as it would be if one breached a general undertaking to the court? i.e. would breaching an undertaking in a Tomlin Order be contempt of court?
Submitted: 1 month ago.Category: UK Law
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Customer reply replied 1 month ago
Would some context assist?
Answered in 2 hours by:
3/8/2018
Solicitor: JimLawyer, Senior Associate & Consultant replied 1 month ago
JimLawyer
JimLawyer, Senior Associate & Consultant
Category: UK Law
Satisfied Customers: 203
Experience: Senior Associate Solicitor and Litigator
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Hello and thank you for the question. The short answer is yes, any undertaking in a consent or a Tomlin order is essentially a broken promise to the court with a sanction which is at the court’s discretion but could ultimately lead to a custodial sentence even though a tomlin order is used in civil proceedings. If you can add some detail, I can advise further. Kind regards, J
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Solicitor: JimLawyer, Senior Associate & Consultant replied 1 month ago
I should have said “any breach of undertaking”. Etc. thanks
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Customer reply replied 1 month ago
Thanks. This is complicated and I need to be clear:I understand the difference between a contractual term (agreement to do (a) in consideration of (b) etc, where enforcement is in contract) and a general undertaking to the court (the breaching of which is contempt). But, to be clear, if one undertakes to do/not do something in a consent order (in this case to desist from doing something in a Tomlin Order) is breaching that undertaking a contractual matter or contempt of court? To add to that, I am aware that enforcing the Tomlin/Schedule requires an action brought within the stayed proceedings, which would be by a general application for the enforcement of the terms I presume.A further aspect to this is that the Tomlin/Schedule was three-quarters of the full agreement, as aspects of the agreement couldn't be placed into the Tomlin/schedule (it crossed two claims, one in the High Court and one in the CC), so remain outside the Tomlin, but alive in contract (with express terms that can be referred to). However, the signatory to the Tomlin Order, and her husband (the signatory to the wider contract) have repeatedly breached the contract to the point of repudiation. Indeed I told them I regarded the contract as effectively repudiated.However (a) I have continued to abide by the terms of the contract/Tomlin and Schedule, (b) they have attempted to enforce the Schedule/Tomlin on me (made and then withdrew an application for enforcement) and (c) appear to regard the contract as not repudiated even though they breach it endlessly (both aspects of which I believe I can demonstrate sufficiently).Not withstanding my previous statement that I regard the contract as repudiated, it would be to my advantage to now be able to enforce the contract, Tomlin and schedule.So my supplemental question is as follows:(a) is the mere expression that I regard them to have repudiated the contract sufficient for them to now rely on that in defending any action/application I bring for a remedy (essentially enforcement of the terms) or would that defence, if profered, be defeated by the fact that I never actually did anything to formally seek the court's declaration that it was repudiated, I just said I believed they had repudiated it?(b) given that most of the contract was contained within the schedule to, and on the face of a Tomlin Order, would I even have such liberty to declare it repudiated without leave of the court?(c) would their attempts to hold me to the contract assist in my pleadings to get the contract enforced?In summary: If I seek to enforce the agreement (and I have strong grounds for doing so) would they be able to rely on a letter from me telling them I regard them as having repudiated the agreement as justification for further breaches? Or for me to have accepted their repudiation, would there have needed to be some further supplemental act on my part to confirm acceptance of repudiation, absent which there is implied affirmation of the contract (especially given the fact that most of the terms where placed into a Tomlin Order/schedule).Thanks
Solicitor: JimLawyer, Senior Associate & Consultant replied 1 month ago
Hi again, the terms of an agreement are set out in a consent order. That order is enforceable by the court and is available for public inspection. The terms of breached can be enforced by the court. Those terms are not confidential and the consent offer is usually drawn up after issue of court proceedings. It is entirely possible there is an undertaking within the order which is the promise to the Court and if breached, the aggrieved party can apply to enforce the breach and the court can also step in and sanction the party who broke the promise. As a breach of undertaking is serious, one of those sanctions can include contempt of court which may lead to criminal liability and it then crosses from civil to criminal issues. A tomlin order is similar to a consent order save for the fact the terms are confidential and unavailable for public inspection. In addition if a term in the tomlin order is broken, there are further ways to enforce. Tomlin orders are often used where complex terms of settlement are agreed. The terms of the Tomlin Order schedule do not form part of the court order, so may remain confidential, and can include matters outside the jurisdiction of the court or the scope of the case in hand. Tomlin orders are a form of consent order, only more complex. The breach of undertaking is relevant to body orders, in other words. Tomlin orders also stay proceedings and if breached, a party can apply to the court and avoid the need to start new proceedings. Is there a warning in the order with words for his effect: “You, the Claimant (Or Defendant) will be in contempt of court if you breach the undertaking given on (date)”. ?
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Solicitor: JimLawyer, Senior Associate & Consultant replied 1 month ago
The other issue is if both parties have not abided by the terms, the order had been broken but can be revised by agreement of both parties. If it’s only one party who is aggrieved and affected, that party may apply to enforce the terms of the order and in their application to enforce, attach a penal notice that of the defaulting party does not comply with that party of the order by such a date, they would then be held in contempt of court
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Solicitor: JimLawyer, Senior Associate & Consultant replied 1 month ago
Hi, if you could please accept my answer, many thanks
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Customer reply replied 1 month ago
Hi. I tried to book a call but something went wrong perhaps? How do I do this?
Solicitor: JimLawyer, Senior Associate & Consultant replied 1 month ago
Hi, you’d have to speak to customer services as I can’t help with the booking system.
Regards
J
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