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In Adibe v National Westminster Bank plc  EWHC 1655 (Ch), the court considered whether there was a collateral contract in relation to a settlement term that did not appear in a Tomlin order.
The appellant (C) had settled proceedings brought by his bank (D) on condition that his credit record would be marked as settled. The Tomlin order did not mention the credit record and D took no steps to amend the credit record, prompting proceedings by C claiming damages for D's alleged failure to comply with the agreement. The master found that C had a real prospect of success in arguing that his settlement offer had been conditional on the bank amending his credit record but held that, by signing the Tomlin order, C accepted that it contained all the agreed terms; awarding summary judgment to D. C appealed.
The Court was of the view it would be inappropriate to disturb the factual conclusions of the master. However, there were two additional considerations:
1) It was beyond doubt that amending the credit record was a matter of real concern to C; and
2) There was no commercial or other justification for D to refrain from amending it.
The court was entitled to, and should, look at all the evidence to see what bargain had been struck. The position was clearly evidenced in emails and telephone notes on D's file. The parties could not have intended that the agreement to amend the credit record be excluded from the Tomlin order (Gillespie Bros & Co v Cheney Eggar & Co  2 QB 59 applied). Any other result would enable the bank to take the benefit of C's offer without the condition on which it was proposed. The case had real prospects of success in establishing a collateral contract and on that point, the appeal was allowed.
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