Gwembe Valley Development Company Ltd v Koshy & Ors

A court may correct an order under CPR 40.12 where the entered wording contains an accidental slip and does not reflect what the court intended. The court need not determine the construction of the order if it is clear that the asserted effect was unintended. Where an appellate order was intended to set aside a first-instance order only as against one party, a later alteration to the recital must not imply that the order remains effective against that party. The appropriate correction is to restore the omitted recital so that the order accurately records the intended scope of the earlier order.

The Court of Appeal considered a further application under CPR 40.12 to correct an order made on 28 March 2001 and previously amended on 25 July 2001. The earlier order had been made by consent to enable claims against Mr Koshy to proceed to trial. It was intended to set aside Harman J’s summary judgment of 20 March 1998 as against Mr Koshy, but not as against Lasco.

The July 2001 amendment deleted the recital of a declaration that Lasco held certain payments as constructive trustee. GVDC later argued that the amended wording suggested that Mr Koshy remained bound by that declaration. The point had not been taken at the trial before Rimer J. The issue was whether the recital should be corrected because the asserted effect of the amendment was not intended.

1. Application granted. The omitted recital was reinstated under CPR 40.12. Costs were assessed at £6,000, including VAT.
2. CPR 40.12 permits correction of an accidental slip in an entered order where the order does not give effect to the court’s actual intention. The correction is directed to the record of the order, rather than to a reconsideration of the underlying decision.
3. The order of 28 March 2001 was intended to set aside Harman J’s order only as against Mr Koshy. The order remained undisturbed so far as it affected Lasco or any person other than Mr Koshy.
4. The deletion of paragraph 1(b) from the recital, together with the addition of the words indicating that only material parts were recited, was not intended to preserve the constructive-trust declaration as binding on Mr Koshy. It was therefore unnecessary to decide whether the amended order could be construed in the manner suggested by GVDC.
5. Where the apparent effect of an order is inconsistent with the court’s demonstrated intention, the proper course is to correct the order so that it records that intention. Paragraph 1(b) of the recital of Harman J’s order was accordingly restored.

• Court of Appeal (Civil Division): On 3 December 2002, the application under CPR 40.12 was granted and the recital in the order of 28 March 2001 was corrected.
• Court of Appeal (Civil Division): The order of 28 March 2001 had set aside Harman J’s order of 20 March 1998 as against Mr Koshy, while leaving it effective against Lasco. The order had previously been corrected on 25 July 2001.
• High Court of Justice, Chancery Division: Harman J had entered summary judgment against Mr Koshy and Lasco on 20 March 1998. Following a later trial before Rimer J, both parties appealed; the appeal hearing was adjourned for resumption.