Johnsen v Johnsen & Ors

A court cannot imply a term into an order merely because it would make the order fairer, more convenient or commercially effective. The implication must reflect what the order, read as a whole and against its relevant background, would reasonably be understood to mean. Where the nature and extent of the proposed provision cannot be identified from the evidence and submissions, implication is impermissible.

The slip rule has a narrow scope. It corrects an accidental departure from the judge’s actual intention; it cannot add to, improve or substantively change an order. The power to vary or revoke an order under CPR r 3.1(7) cannot operate as an appeal or permit reargument on the original material. Material change of circumstances or material misleading of the court is required.

The Applicant, executor of the deceased Claimant’s estate, applied to be joined and sought to perfect an order made on 6 October 2006 in earlier partition proceedings concerning Abercamlo Farm. He contended that the order either expressly or impliedly required the Respondents to grant Plot B a right of way over a track in Plot A.

Alternatively, he sought amendment under CPR r 40.12 or variation under CPR r 3.1(7). The Respondents disputed the interpretation and the court’s jurisdiction to amend or vary the order.

1. The Applicant was joined as a party because he was the executor authorised to collect the deceased Claimant’s estate in England and Wales.

2. Applying Attorney General of Belize & Others v Belize Telecom Ltd & Another [2009] 1 WLR 1988, the order had to be construed objectively as a whole and against the relevant background. The court could not improve the order or insert a provision merely because it appeared desirable.

3. The order contained no express right of way. Although the equal-cost maintenance covenant in paragraph 8(c) suggested that the Claimant might obtain a benefit from the track, the evidence and submissions preceding the order did not identify the nature or extent of any right. It was therefore impossible to determine whether the right would be for all purposes, agricultural purposes, particular vehicles, specified times or limited frequency. The order did not impliedly require a right of way.

4. CPR r 40.12 was confined to correcting an accidental slip or omission where the judge intended one thing but the order recorded another. It could not be used for second thoughts, additions or substantive changes. The evidence did not establish that the judge had intended to order a right of way and accidentally omitted it. The unexplained delay was an additional reason not to exercise the power.

5. Following Collier v Williams [2006] 1 WLR 1945, CPR r 3.1(7) could not be used as an equivalent to an appeal. The jurisdiction required a material change of circumstances or that the court had been materially misled. Neither criterion was satisfied. Evidence concerning the effect of the right of way could have been deployed before the original order, and the court had not been misled.

6. The application failed. Arguments based on proprietary estoppel and the rule in Wheeldon v Burrows [1879] 12 Ch D 31 would require separate proceedings and could not be determined on this application.