England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR JUSTICE HARMAN)

		Royal Courts of Justice Strand London, WC2 Tuesday, 3rd December 2002

1. LORD JUSTICE CHADWICK: This is a further application under CPR 40.12 to correct an order made by this court (Schiemann LJ, Sir Christopher Staughton and myself) on 28 March 2001. The order has already been the subject of some correction under that rule; by an order made by Schiemann LJ and myself on 25 July 2001.
2. The background facts, which led to the order of 28 March 2001 and to the further order on 25 July 2001, appear from my judgment of 25 July 2001. It is unnecessary to rehearse them. This judgment should be read with that earlier judgment.
3. The order of 28 March 2001 was made so as to give effect to the common desire of the parties now active in this litigation -- Gwembe Valley Development Company Limited ("GVDC") and Mr Thomas Koshy -- that the claims of GVDC against Mr Koshy should be litigated at a trial then fixed to commence in May 2001. The impediment which prevented effect being given to that common desire was perceived to be an order made by Harman J on 20 March 1998, giving summary judgment against both Mr Koshy and the second defendant, Lummus Agricultural Services Company Limited (known in this litigation as "Lasco"). Mr Koshy had appealed from that order. Lasco had also appealed but its appeal had been dismissed.
4. In the unusual circumstances of this case, the court, without expressing any view on the correctness or otherwise of Harman J's decision in March 1998, decided that the order of 20 March 1998 should be set aside on Mr Koshy's appeal. A minute of order was prepared and agreed by counsel. It was subsequently entered in the form agreed.
5. The order of 28 March 2001 as agreed and entered contained a recitation of paragraph 1 of Harman J's order; including, in particular, sub-paragraph (b) of paragraph 1 of that order, which declared that the second defendant, Lasco, holds or held the payments that it received from the claimant GVDC in the period between 1 January 1987 and 31 December 1989 as constructive trustee for the claimant.
6. In the operative part of the order of 28 March 2001 as agreed and drawn, it was provided that "the order of Harman J dated 20 March 1998 be set aside". That had not been the intention of the court. The intention of the court had been to set aside the order of 20 March 1998 as against Mr Koshy, but not as against Lasco. It was that accidental slip that was corrected on 25 July 2001 on the application of GVDC.
7. However, the amendments made following the hearing on 25 July 2001 included not only the addition of the words "as against the first defendant" at the end of paragraph 1 of the operative part of the order of 28 March 2001, but also the deletion of, inter alia, sub-paragraph (b) in paragraph 1 in the recital of Harman J's order of 20 March 1998; and the inclusion in the introduction to that recital of the words "(so far as material)".
8. I am told by both counsel that no point was taken at the trial before Rimer J as to the entitlement of Mr Koshy to argue that the second defendant, Lasco, was not a constructive trustee of the payments that it received from the claimant in the period from 1 January 1987 to 31 December 1989.
9. After Rimer J had given judgment, both parties appealed. That appeal came before the Court of Appeal in July of this year, but the appeal was not concluded in the time for which it had been listed. The hearing of the appeal was adjourned and a resumed hearing is fixed for 11 December 2002; that is to say, at the beginning of next week.
10. Between the hearing of the appeal in July and the adjourned hearing in December of this year, further skeleton arguments or written submissions have been prepared on behalf of the claimant, GVDC. It appears from that material that the claimant now seeks to take that point, not taken before Rimer J, that Mr Koshy is precluded by the order of Harman J from contending that Lasco did not receive the relevant payments as a constructive trustee.
11. Whether or not the Court of Appeal will permit that point to be taken -- raised, as it is, at a late stage and not having been taken below -- is not a matter for me. What is a matter for me is that it is asserted that the point gains credibility from the form of the amendment made to the order of 28 March 2001 on 25 July 2001. In particular, it is said that the effect of deleting reference to paragraph 1(b) of Harman J's order of 28 March 1998 in the recital of that order in this court's order of 28 March 2001, coupled with the introduction of the words "(so far as material)" to which I have referred, is that the operative part of the order of 28 March 2001 must be read as if qualified to the extent that the order of Harman J is set aside against Mr Koshy only in respect of those paragraphs actually recited; and, in particular, that Mr Koshy continues to be bound by paragraph 1(b) which contains the relevant declaration.
12. It is plain that that was not the intention of this court, either on 28 March or on 25 July 2001. That appears plainly from the transcript of proceedings on 28th March 2001 at page 23G to 24A, where it was said that the order made by Harman J on 20 March 1998 be set aside by consent:

"Which means that that order no longer stands in the way of anything that the trial judge has to decide."

In paragraph 11 of my judgment on 25 July it was made clear that the purpose of the order made on 28 March 2001 was that the claims of GVDC against Mr Koshy should be litigated; but that the order of 20 March was not disturbed in so far as it affected Lasco, or anyone other than Mr Koshy.

13. It is unnecessary to consider whether, as a matter of construction, the order of 28 March 2001 as corrected on 25 July 2001 does have the effect for which GVDC contends. It is enough to hold that if it does have that effect, the effect was not intended. In those circumstances the appropriate course is to reinstate paragraph 1(b) in the recital (in the order of 28 March 2001) of Harman J's order of 20 March 1998. That is the correction which I direct should be made under CPR 40.12.

ORDER: Application granted with costs assessed at £6,000, to include VAT.

(Order not part of approved judgment)