Gwembe Valley Development Company Limited v Koshy; Lummus Agricultural Services Company Limited

The slip rule permits correction of an order that fails to reflect the court’s actual intention because of an accidental slip or omission. It does not permit the court to reopen the merits of an appeal or make an order affecting a party or issue that was not before it. Where an appellate order was made to facilitate a consensual course and the court expressly reserved its view on the merits, wording that appears to disturb a judgment against another party may be corrected under Civil Procedure Rules 1998 rule 40.12. The correction should record the order the court intended to make, rather than an order the court might have made after hearing the merits.

The claimant had obtained summary judgment in the Chancery Division before Harman J on 20 March 1998 against Mr Koshy and Lummus Agricultural Services Company Limited, including a declaration and orders for accounts. Both defendants appealed, but the second defendant’s appeal was later treated as spent after it failed to comply with an order concerning security for costs.

On 28 March 2001, following a consensual application by the claimant and Mr Koshy, the Court of Appeal set aside the order against Mr Koshy so that the claims against him could proceed to trial. The court expressed no view on the merits. During the trial, the claimant applied under Civil Procedure Rules 1998 rule 40.12 to clarify whether the earlier order had also affected the second defendant. The central issue was whether that apparent effect was an accidental slip or omission.

Decision

1. Application allowed. Lord Justice Chadwick delivered the first judgment, and Lord Justice Schiemann agreed. The order of 28 March 2001 was amended under Civil Procedure Rules 1998 rule 40.12. There was no order as to costs.
2. The only question under the slip rule was whether the order contained an accidental slip or omission. The Court of Appeal had intended to affect only the parties before it on 28 March 2001, namely the claimant and Mr Koshy. It had not been asked to disturb the order against Lummus Agricultural Services Company Limited, and the proceedings had proceeded on the common assumption that the second defendant’s appeal was spent.
3. The apparent effect of the wording was therefore accidental because the order, although prepared and agreed by counsel, did not reflect the court’s intention. The amendments were directed to making clear that the order operated as against the first defendant only and did not disturb the judgment, declaration or account orders concerning the second defendant.
4. An application under the slip rule cannot be used to reopen the merits of an appeal. Whether the court might have reached a different conclusion had the appeal been argued on its merits was irrelevant. The purpose of the earlier order was to facilitate the parties’ agreed course while leaving the correctness of Harman J’s judgment undecided.

• Court of Appeal (Civil Division): On 25 July 2001, the application to amend the Court of Appeal’s order of 28 March 2001 under CPR 40 rule 12 was allowed. The order was clarified as operating only against Mr Koshy: [2001] EWCA Civ 1306.
• Court of Appeal (Civil Division): On 28 March 2001, the court set aside the summary judgment against Mr Koshy by consent or otherwise to permit the claims against him to proceed to trial, without expressing a view on the merits.
• Chancery Division: Harman J’s order of 20 March 1998 granted summary judgment against Mr Koshy and Lummus Agricultural Services Company Limited, including a declaration and orders for accounts.