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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10915
Experience:  Solicitor with 5+ years experience
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I have a tomlin order and am at court tomorrow for breach of

Customer Question

I have a tomlin order and am at court tomorrow for breach of contract - I am the applicant. The schedule of the order was not complied with at all and information that should have been received was not, access to premises to remove possessions was interfered with, creditors were not provided and after taking over the company, I have well and truly been done over. I am suing for damages for breach of contract - same judge that has been dealing with case for over 18 months. Have I got this wrong. I am NOW a litigant in person and I know they have council tomorrow!!
Submitted: 3 years ago.
Category: Law
Expert:  Ash replied 3 years ago.

Alex Watts :

Hello my name is Alex and I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply as this is not an ‘on demand’ live service, but rest assured I will be giving your question my immediate attention upon return.

Alex Watts :

What is it you would like to know about this today please?

JACUSTOMER-t00a9g3m- :

I have put an application to court, directions hearing tomorrow to establish whether or not I can claim damages for the schedule of the tomlin order not being executed. I was hoping that I would just need to then do a particulars of claim and await a hearing date to attend with witness statements etc. I have a statement from the other side today and it makes it sound as though I have not got a chance and shouldn't be pursuing? I have lost a fortune because of their conduct and interference ( I feel) and feel that economic loss should be recoverable.

Alex Watts :

If there is a Tomlin Order and they have breached it then indeed you can claim for losses as a result of that breach.

Alex Watts :

But in terms of your question, is there anything else you want to ask me?

JACUSTOMER-t00a9g3m- :

everything I have read says that the court may not have the jurisdiction because it is a contract between ourselves. Am I on the right track with 'breach of contract'

Alex Watts :

If the Order is not complied with what does the Schedule say you can do?

Alex Watts :

Ie, was it to enter Judgment in default etc?

JACUSTOMER-t00a9g3m- :

'the parties have liberty to apply as to carrying such terms into effect without the necessity to commence further proceedings'

Alex Watts :

Yes, but what are the other terms? They had to pay £x or you would enter Judgment etc?

JACUSTOMER-t00a9g3m- :

it was to take over the shares and running of a company without any disruption to that company. however, all possessions of the company disappeared, I was not made aware of the extent of debt (they had given me very much reduced numbers) and the income from that company has now disappeared so that the debt cannot be serviced which is what the order was really all about. the defendant/intervenor were to give up the company and the ownership to me in order that I could benefit from the income generated from the company but as it stands, I have inherited tons of debt (that they should have disclosed) and got probably 10% of the income that I should have because all the computers files etc disappeared and the clienys have all disappeared - we were unable to contact them or pay their rents because we did not know or have access to records when we should have had no interference

Alex Watts :

I see. In that case you can apply to set aside the Tomlin Order and then continue with the original claim. But as such a Tomlin Order is an order approved by the Court, but the Court will not get involved in the terms.

Alex Watts :

Whilst it is an agreement as such one does not normally sue in terms of the Tomlin - because the Tomlin should say what happens in the event of a breach. No mention of this then all you can do is sue for the original claim and apply to set aside the Order.

Alex Watts :

You can not sue for a breach and then claim other losses as a result of the Tomlin.

Alex Watts :

Does this make sense?

JACUSTOMER-t00a9g3m- :

I was told that a tomlin order was a contract between the parties and because they had not complied to the terms, I could sue for breach of contract, remedy being damages? they were meant to give access to premises at a said time, detaled information which they did not etc. the tomlin order was signed on 14th June to take affect the 17th, they did not give the detail. should I therefore being asking the judge to set aside the tomlin order?

Alex Watts : Yes,
Alex Watts : Set aside Tomlin order then proceed with your claim as before
JACUSTOMER-t00a9g3m- :

what happens about the fact that the shares have all transferred in to my name and bank accounts etc?

Alex Watts : Does the order set out what happens in default?
JACUSTOMER-t00a9g3m- :

no

JACUSTOMER-t00a9g3m- :

I think things may have gone too far and I am just going to have to suffer the consequences or start a new application where the company sues the previous director for breach of fiduciary duties

JACUSTOMER-t00a9g3m- :

what a mess

Alex Watts : Really it should have said what happens in default and that would have been ideal.
Alex Watts : But nonetheless a Tomlin order is an agreement and c
Alex Watts : And you could in theory sue for breach of contract.
Alex Watts : But the order should have set out what happens if things go wrong.
JACUSTOMER-t00a9g3m- :

oh right - so I have to go that route and ask to be able to submit a particulars of claim and see what happens - to unwind everything now would be so detrimental to our clients - we are a letting agent and they have been through too much already. it is a debacle!!! thank you any way.

Alex Watts : If this answers your question, please take a moment before you leave and rate my service, which I hope has been excellent, it only takes a second and is an important part of the process. Otherwise if you need more information or help then please click reply. Alex

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