George Moundreas and Company S.A. (Plaintiffs) v Navimpex Centrala Navala
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ACKNER,LORD JUSTICE OLIVER |
| Judgment Date | 17 March 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J0317-5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 83/0143 1982 G. No. 1694 1982 G. No. 2214 |
| Date | 17 March 1983 |
[1983] EWCA Civ J0317-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (Civil Division)
(On appeal from Mr. Justice Mustill (1981 G. No. 3092) and from Mr. Justice Staughton (1982 G. No. 1694 and 1982 G. No. 2214))
Royal Courts of Justice
Lord Justice Ackner
and
Lord Justice Oliver
83/0143
1981 G. No. 3092
1982 G. No. 1694
1982 G. No. 2214
Mr. BERNARD EDER (instructed by Messrs. Thomas Cooper & Stibbard) appeared on behalf of the Appellants (Defendants).
Mr. STUART ISAACS (instructed by Messrs. Heald Nickinson) appeared on behalf of the Respondents (Plaintiffs).
The principal question which this appeal raises is whether Mr. Justice Mustill had the power to make the obviously sensible order which he made, which was to amend a default judgment, properly obtained against the defendants for over $1,000,000, by reducing it by $63,600. The reduction was made because in the list of 13 items making up the claim
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(a) Item 2, a claim for $20,400, although owing when the writ was issued, had been paid before judgment was obtained and this was overlooked by the plaintiffs.
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(b) Item 5 wrongly stated the hull number of the vessel in relation to which the claim for $43,200 was made. It should have been described as 900/150 and not 900/96 in respect of which hull, if it existed, the plaintiffs had no claim.
The power of amendment which the learned judge purported to exercise is that power provided by Order 20, Rule 11 of the Rules of the Supreme Court. This reads:-
"Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on motion or summons without an appeal".
Mr. Eder for the appellants, the defendants in the action, who has argued his case with particular skill and persuasiveness, has contended that as the court intended to give judgment for the amount claimed in the writ, there is no power under the rule to amend and accordingly he is entitled as of right to set aside the whole judgment, albeit that there is, as the learned judge found, no defence on the merits. Accordingly, if Mr. Eder was right the quite unjustified extra expense and delay involved in fresh proceedings would have to be incurred merely to overcome the two quite simple and innocent mistakes which resulted in a judgment being obtained for too much.
It is common ground that the Order gives power to correct mistakes by an administrative officer. Thus, it is not disputed that if the administrative officer had inadvertently inserted into the judgment a figure other than that stated in the writ, the rule could have been used to effect the necessary amendment to the judgment. Mr. Eder's contention is—the administrative officer has made no mistake, slip or omission. He has done precisely that which he was entitled to do and which he was requested to do by the plaintiff's solicitors. The accidental slip, namely, the failure to inform the administrative officer that items 2 and 5 in the points of claim were no longer effective and accordingly the judgment should not include the aggregate of these two items, was the mistake or omission of the plaintiff's solicitors. He accordingly submits that no power of amendment exists under the rule.
Mr. Eder clearly accepts that if he is right the only method of correcting these errors is cumbrous and expensive. He submits that this was accepted in terms to be the position by the majority of the Court of Appeal, some 50 years ago, in MacCarthy v. Agard [1933] 2 KB 417 and in particular by Lord Justice Greer, who referred in terms to the regrettable need to use a steam hammer to crack a nut and to the necessity for the introduction of a further rule to provide the appropriate power. The terms of Order 28, Rule 11, which was the subject-matter of the court's consideration, was in the same terms as the current Order 20, Rule 11.
I do not consider that MacCarthy has any real application to the problem with which we are faced. There the defendant, a widow, had falsely misrepresented her status to be that of a married woman in order to limit the judgment against her to the very special form applicable to a married woman. On discovering the fraud, the plaintiffs sought to get rid of the operative and substantive part of the judgment—the very judgment itself. The Court of Appeal held by a majority that this could only be done by way of an appeal, although it did give leave to amend the title of the action (see the comments on that case made in Pearlman (Veneers) SA (Pty.) Ltd. v. Bernhard Bartels [1954] 1 WLR 1457).
The case which in ray judgment is of particular assistance, although by no means in itself decisive, is a case in this court of Muir v. Jenks [1913] 2 KB 412. In that case owing to an oversight the plaintiff signed judgment against the defendant in default of appearance for £20 in excess of what was due. He subsequently caused to be issued a bankruptcy notice founded upon that judgment but claiming only the amount of the judgment less £20 and other sums subsequently paid by the defendant. The defendant took out a summons to have the judgment set aside on the ground that the writ had not been properly served upon him. At the hearing of the summons counsel for the defendant took the point that the judgment was irregular on the ground that it was signed for the wrong amount. The Master suggested that the error might be rectified as slip, but counsel for the plaintiff took the view that, as the bankruptcy notice was served for the right amount, nothing would be gained by rectifying the judgment. The Master then dismissed the defendant's summons on the ground of his delay, which decision was upheld by the Judge in Chambers. The appeal was allowed, in essence because of the insistence of the plaintiff standing by the judgment and his failure to seek to have it rectified. Lord Justice Buckley in the course of his judgment said:-
"It is the duty of the creditor if he obtains a wrong judgment to have it set right" (page 415)· "If the plaintiff in the absence of the defendant, proceeding properly under the Rules, signs judgment for a sum in excess of that which is due to him, the defendant is entitled to have that judgment set aside, unless the party who holds the judgment applies as he may to reduce it to the proper amount. If application to amend be duly made it may be right not to set the judgment aside, but to reduce it to the proper sum; but unless the party who holds the judgment elects to have it put right, then upon the authority of Hughes v. Justin it seems to me the defendant is entitled to say, 'This is a wrong judgment, set it aside'" (page 417)
Lord Justice Kennedy in his judgment said:-
"….. it is important that we should see that claims which are based upon a judgment signed for an excessive amount are not allowed to succeed when the course which has been deliberately taken by the creditor has prevented that amendment for the correction of the error which might have been made, in my view, in accordance with the rules and the authorities" (page 418).
The case of Hughes v. Justin [1894] 1 QB 667 referred to in Muir v.Jenks, was a case in which a writ was issued endorsed for a liquidated demand and after it had been issued, but before either the plaintiff or the defendant knew that it had been issued, they met and a sum was agreed on which the defendant was to pay in settlement of the whole matter. This sum was accordingly paid. Notwithstanding that, the...
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