Ableport Limited v Tariq Ali Khan & Ors

A court may enforce a Tomlin order when an agreed payment obligation is unconditional and overdue. Alleged breaches of other settlement terms do not justify an adjournment, refusal of judgment or withholding of contractual interest unless the breaches are established and shown to have caused the default. A related application to vary the order does not require an adjournment where the party has taken no steps to have it heard with the enforcement application. Permission to appeal should be refused where the proposed grounds have no real prospect of success.

A family property company settled proceedings with the defendants by a Tomlin order. The defendants agreed to pay £590,000 by 14 December 2001, with interest on default. They alleged that the claimant had breached provisions concerning property inhibitions and notification of the discharge of a freezing order, and sought to rely on those alleged breaches to resist enforcement.

On 6 March 2002, Wright J refused an adjournment and entered judgment for the agreed sum with interest. The defendants renewed their application for permission to appeal. The issues were whether the hearing should have been adjourned for a related variation application, and whether the alleged breaches justified withholding judgment or interest.

The Court of Appeal, in a judgment given by Tuckey LJ with which Peter Gibson LJ agreed, refused the renewed application for permission to appeal.

1. Adjournment. The defendants had made an earlier application to vary the Tomlin order, but had taken no steps to ensure that it was heard with the claimant’s enforcement application. There was no good reason to adjourn the enforcement application, particularly since the defendants’ solicitors had indicated that counsel would attend to seek an adjournment and no counsel appeared.
2. Enforcement of the payment term. The obligation to pay £590,000 by the specified date was unconditional. No payment had been made nearly three months after the due date. The claimant was therefore entitled to enforce the settlement by obtaining judgment.
3. Alleged breach concerning the properties. The relevant term required the inhibitions to be replaced by registered notices where possible. The correspondence did not clearly establish a breach. Later correspondence concerning withdrawal of inhibitions before sales did not prove that the earlier obligation had not been performed.
4. Alleged breach concerning confidentiality and notification. The material did not establish any substantial breach. The defendants had not identified which organisations had originally been notified of the freezing order, so general statements by institutions that they had received no notification could not prove non-compliance.
5. Equitable relief and causation. The evidence did not clearly show either a relevant breach or that any breach caused the defendants’ inability to pay. There was consequently no basis for refusing judgment or withholding interest.

None of the proposed grounds gave the applicants a real prospect of success on appeal.

• Court of Appeal (Civil Division): On 3 September 2002, the renewed application for permission to appeal was refused. [2002] EWCA Civ 1389
• Queen’s Bench Division: Wright J refused an adjournment on 6 March 2002 and entered judgment for £590,000 plus interest to enforce the Tomlin order.