Deg-Deutsche Investitions-Und Entwicklungsgesellschaft MBH v Koshy & Ors

A first-instance judge generally has no jurisdiction to vary or revoke an order made by another judge once it has been passed and entered, subject to recognised exceptions and any applicable statutory power.

CPR 3.1(7) does not, on its ordinary wording, confer retrospective power to vary a pre-CPR order. A party who declines an offered opportunity to have an issue remitted for determination cannot later seek to litigate the same issue through a different procedure. Such an attempt may constitute an abuse of the court’s process.

The claimant’s action had been dismissed at trial, but an earlier order of Harman J required Mr Koshy to pay substantial costs of an unsuccessful application to discharge a freezing order. After the trial, Mr Koshy sought permission to challenge that costs order based on alleged material non-disclosure.

The Court of Appeal dismissed that appeal in 2003, while offering to remit the non-disclosure and costs issues for determination in the Chancery Division. Mr Koshy declined the offer and elected to proceed with the appeal. He later applied to set aside the costs order. The preliminary issues were whether the court had jurisdiction and whether his election precluded the application.

1. Jurisdiction. The application was not within the ordinary inherent jurisdiction of a first-instance judge. Once a High Court order has been passed and entered, it can generally be discharged or varied only by the Court of Appeal, subject to recognised exceptions such as the slip rule, supplemental orders, an express power of variation, statutory review powers and limited cases concerning orders not yet worked out.
2. The authorities relied on concerning continuing disclosure duties on without-notice applications did not establish jurisdiction to vary an inter partes costs order on the ground of material non-disclosure. The present application therefore could not succeed through inherent jurisdiction.
3. CPR 3.1(7). The rule provides that a power to make an order under the CPR includes power to vary or revoke the order. Properly construed, “the order” means an order which the court has power to make under the CPR. It does not extend retrospectively to an order made before the CPR came into force. The court therefore rejected the contrary first-instance view expressed in Paragon Finance v Pender and held that CPR 3.1(7) did not apply to the Harman Order.
4. Election and abuse of process. The Court of Appeal had offered Mr Koshy the opportunity to litigate the precise issue now raised through a fact-finding process with ordinary procedural safeguards. He expressly declined that course and elected to have the matter decided on the limited material available to the Court of Appeal. Reopening the same issue through the present application would give him the opportunity previously refused and would amount to an abuse of process, applying the principle explained in Johnson v Gore Wood.
5. The court answered both preliminary issues against Mr Koshy. His application to set aside the costs order was dismissed.

• Court of Appeal: The appeal against the Harman Order was dismissed on 24 November 2003. The court indicated that a properly defined issue concerning material non-disclosure and its effect on costs could have been remitted to the Chancery Division, but Mr Koshy declined that course.
• High Court (Chancery Division): The present application was dismissed because the court lacked jurisdiction and, independently, because the application was barred as an abuse of process.