Community Care North East (A Partnership) v Durham County Council

The terms scheduled to a Tomlin order are a binding settlement contract, not terms ordered by the court. The court therefore has no general procedural power to vary them because circumstances have materially or unexpectedly changed. Variation requires a remedy available under contract law or a clearly expressed power to vary.

A standard liberty to apply for the purpose of giving effect to scheduled terms permits enforcement, not variation. The settlement must be construed according to ordinary contractual principles. It does not remove rights which it does not expressly or impliedly address.

A local authority compromised proceedings challenging a procurement exercise by entering into a Tomlin order. The scheduled settlement required it to set aside the original interview results and repeat the interview stage in accordance with applicable legal obligations.

After unsuccessful tenderers challenged the repeated process, the authority proposed to abandon it and undertake a fresh procurement. It applied to replace the scheduled obligation with an obligation to commence a new process. Alternatively, it sought a declaration that the settlement did not prevent it from exercising any otherwise existing power to terminate the procurement and start again.

The issues were whether the court could vary the scheduled settlement, whether any such power should be exercised, and whether the settlement precluded termination of the procurement.

1. Disposition. The application to vary the scheduled settlement was dismissed. The court granted a declaration that the agreement did not preclude the authority from exercising any powers it otherwise possessed to terminate the procurement process and start afresh.
2. A Tomlin order distinguishes between the order made by the court and the settlement agreement placed in its schedule. The scheduled terms are contractual and are not themselves ordered by the court. Ordinary contractual principles govern their construction, enforceability, rectification and variation. The procedural powers in rules 1.1, 1.4 and 3.1(7) of the Civil Procedure Rules do not create a general jurisdiction to rewrite that agreement: paras [23]–[28], [34]–[36].
3. The more flexible approach to varying consent orders discussed in Ropac Ltd v Inntrepreneur Pub Co (CPC) Ltd [2001] L&T R 10 and Weston v Dayman [2006] EWCA Civ 1165 did not establish such a power over the contractual schedule to a Tomlin order. A court could act where contract law supplied a remedy or where the order clearly conferred power to vary the schedule. Any such liberty would require clear definition: paras [27]–[29], [34].
4. The standard liberty to apply in this order was expressly confined to giving effect to the scheduled terms. It authorised their enforcement, not their variation. The principle concerning the limited function of liberty to apply in Cristel v Cristel [1951] 2 KB 725 supported that conclusion: paras [29]–[31], [35]–[36].
5. Even if a power to vary existed, the court would not exercise it. The possibility that no contract would be awarded after the repeated interview process was contemplated. The proposed substitution would replace the obligation actually undertaken and could affect accrued rights. It was also unnecessary because any otherwise existing power to commence a new procurement did not depend upon variation: paras [37]–[40].
6. On its proper construction, the settlement regulated the repeated interview stage and specified the personnel who could participate. It did not remove any pre-existing right to cancel the procurement. The court made no finding about the existence, scope or lawful exercise of such a right; it decided only that the settlement did not exclude it: paras [43], [47]–[49].

This was a first-instance application concerning a Tomlin order made after the claimant had begun proceedings and sought an injunction challenging a public procurement exercise. The original proceedings were compromised by the consent order dated 26 March 2009. No appeal or earlier adjudication of the present issues is stated in the judgment.