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.
What is it you would like to know about this today please?
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.
If there is a Tomlin Order and they have breached it then indeed you can claim for losses as a result of that breach.
But in terms of your question, is there anything else you want to ask me?
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'
If the Order is not complied with what does the Schedule say you can do?
Ie, was it to enter Judgment in default etc?
'the parties have liberty to apply as to carrying such terms into effect without the necessity to commence further proceedings'
Yes, but what are the other terms? They had to pay £x or you would enter Judgment etc?
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
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.
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.
You can not sue for a breach and then claim other losses as a result of the Tomlin.
Does this make sense?
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?
what happens about the fact that the shares have all transferred in to my name and bank accounts etc?
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
what a mess
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.