Construction of Tomlin Order and costs

Construction of Tomlin Order and costs


CategoryArticles Author Damian Falkowski Date

Damian Falkowski, instructed by Millners Solicitors of Leeds, succeeded in an appeal in the Chancery Division (Andrew Sutcliffe QC sitting as a Deputy Judge) that upon a proper construction of a Tomlin Order the parties had, in the event of a dispute arising, conferred jurisdiction on a barrister to be appointed to settle the terms of the lease to be granted, so the court had no jurisdiction to hear an application brought by the Secretary of State to enforce the Tomlin Order. By the time the application came to be heard the parties had resolved the dispute so the only issue was as to where costs would fall.

The Secretary of State v D & MA Sunderland & Son Ltd, 17 March 2015

Leeds District Registry, Andrew Sutcliffe QC, siting as a Deputy Judge of the Chancery Division.
Damian Falkowski acted for the defendant land owners.

Proceedings between The Secretary of State (highway agency) and the defendant owners of certain land in Holmfield, Halifax, arising out of the condition of a tunnel had been compromised. A schedule to a Tomlin Order made provisions for the defendant to grant a lease on certain terms to the Secretary of State. One of the terms allowed a pumping station to be built on the land to be demised.  There was a provision that in the event of the parties not being able to agree the terms of the lease a barrister was to be appointed to determine the issue. The parties had not reached agreement on the terms and the Claimant issued court proceedings to enforce the Tomlin Order. By the time the application came to be heard the parties had resolved the dispute.

The question was whether the Secretary of State had been entitled to issue proceedings, or whether, as the defendant contended, the parties had conferred jurisdiction on a barrister to be appointed to settle the dispute.

At first instance it was held that Secretary of State had been entitled to issue proceedings and so the Secretary of State was awarded his costs.

The defendant’s appeal succeeded.  Notwithstanding the well-established reluctance of the appellate courts to interfere with the exercise of a discretion, particularly a discretion as to costs, the judge below was wrong to conclude that the court had had jurisdiction. As the district judge had erred in principle the Deputy Judge reversed the decision below and exercised the discretion afresh and awarded costs in the defendant’s favour on both the appeal and the application below.


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