clr/1988/1988_1_583.pdf

(5)and

(6)— Ambit of Court's power thereunder— The slip rule — Does not authorise vanation of compromise 5 Civil procedure — Errors or omissions — The inherent power of the Courtto correct— Ambit of \Q '•'dgments and Orders— Consent order — Itis of two kinds, ι e one recording the agreement and one founded on the agreement — In the former case, there is no power to vary it, except on the like grounds as a contract may be varied—In the latter case it is amenable to vanation as itreflectsthe exercise ofjudicial power 15 Appellant's father died as a result of a road accident Appellant brought an action claiming, inter aha, damages for loss suffered by the estate This claim was fashioned on the way section 34 of the Administration of Estates Law, Cap 189, was understood pnor to Gammellv Nilson and Another [1980] 2 All ΕR 57 On 23 5 84, after the close of the pleadings, the parties agreed, thaton atotalliability basis, theplaintiff would be entitledto recover unders 34 £750- 20 The agreement was recorded in the minutes of the Court Hallowing such recording, the appellant filed an application to amend resting on 0 25 of the Civil Procedure Rules with a twofold objective (a)To modify the terms of the said agreement and (b)to amend the statement of claim by adding a claim on behalf of the estate of the deceased for loss of future earnings 583 Sofocli v. Leonldou

(1988)The tnal Courtdismissed theapplication on theground thatwhat was sought to be amendedwas neitheran error nor omission inthe declaration of the agreement, or an error in the order of a court amenable tocorrectionorrectification underr5 and r6 of Ord 25 Hence thisappeal 5 Held,dismissing theappeal

(1)Thepowers of theCourtunderr 6 of Ord 25 are confined to the correction of clencal mistakes and errorsansing from accidentalslipsoromissions Theinherent power of the Court to correct errors or omissions is again limited to errors owing to failure to give expression in the order orjudgment to the 10 manifest intentionof the Court There is noauthontyunderthe slip rule tovary theterms of a compromise

(2)TheCourthas no power tovarytheterms of theagreementof the parties as distinct from making orders inaid of its enforcement

(3)A consent order is of two kinds 15 (ι)Onerecordinganagreementof theparties,and(n)one founded on an agreement of the parties In the latter case the order reflects the exercise of judicial power and assuch itis amenable tovanation Intheformer case thereisno power tovarytheagreement of thepartiesexcept onlike groundsas 20 a contractmay be varied Appeal dismissed withcosts Casesreferred to Gammellv Wilson and Another [1980] 2 All ΕR 557, Kassmou ν Efstathiou

(1984)1C LR 77, 25 HjiHanniv Yiouselhs

(1963)2 C L R 407 Katanna Shipping ν Ship 'Poly»

(1978)1C LR 486, Re Inchape Craigmyle ν Inchape [1942]2 All ΕR 157, Bremer Vulkan Schiffban Uod Maschinenfabnk ν South India ShippTng Corpn [1981] 1All ΕR 289, Corby DC ν Hoist and Co Ltd [1985] 1All ΕR 321, Anders Reden ν Lovisa Stevedoring Co. [1985]2 All ΕR 669; R ν Cnpps [1983] 3 All ΕR 72, De Lasala ν De Lasala [1979] 2All ΕR 1146, 584 30 1 C.L.R. Sofocll v. Lconidou Thwaitev.Thwaite [1981] 2All Ε R.789; Siebe Gorman andCo.Ltd. v.PneupacLtd. [1982] 1All E.R. 377; Chandless-Chandlessv. Nicholson [1942] 2All E.R315; 5 HuddersfieldBankingCo.Ltd. v. HenryListerandSonLtd. (1895]2Ch. 273: ChanelLtd. v.F.W. Woolworth andCo.Ltd. [1981]1All E.R.745. Appeal. 10 15 Appeal by plaintiff against the order of the District Court of ?aphos (Anastassiou, S.D.J.) dated the 18th November, 1985 Action No.776/82) refusing an application for the correction of an agreement between theparties respecting the sum payable, in .he event of respondent being held liable, for lossof expectation of life aswellas refusing toallow theamendmentof thestatement of claim. Chr. M. Georghiades, for the appellant. A. P.Anastassiades,for therespondent. Cur. adv.vult. A. LOIZOU P.:Thejudgment of the Courtwillbe delivered by Pikis, J. 20 PIKISJ.: This appeal is directed against an order of theDistrict Court of Paphos refusing an application for the correction of an agreement between theparties respecting thesum payable, inthe eventof respondentbeing heldliable forlossofexpectation of life, as well as the refusal of the Court to allow the amendmentof the 25 statement of claim in a way intended to by-pass the aforesaid agreement of theparties.Thefacts of thecase,unusualastheyare, have tobe recounted inorder for theissuesposing for resolution to be properly understood and determined. The appellant is the son of Neophytou Sofocli Karayiannides 30 who died as a result of injuries suffered in a road accident. He institutedanactionas personal representative of thedeceased for losssuffered by theestate arising from thedeath of hisfather and, for loss occasioned to him as a dependent of the deceased. His action was fashioned, as can be gathered from the statement of 35 claim, on the understanding of s.34 of the Administration of Estates Law - Cap. 189, prevalent before Gammell v. Wilson and 585 Pikis J. Sofocli v. Leonidou

(1988)Another* followed by the Supreme Court in Kassinou v. Efstathiou**. Paragraph 5 of the statement of claim makes it abundantly clearthattheclaimraisedonbehalf oftheestate under s.34 with regard tofuture lossaccruingtothe estate,was confined to loss of expectation of life. The case of Kassinou adopted the 5 interpretation of s.34 favouring the vesting in the estate of a right torecoverlossoffuture earnings.On23May, 1984,aftertheclose of the pleadings, the parties agreed the damage to which the plaintiff would be entitled under s.34 of Cap. 189, inaddition to funeral and testamentary expenses. The agreement following a 10 statement of the parties duly recorded by the Court, was to the effect that on a total liabilitybasistheplaintiff would be entitled to recover £750.- under s.34 of Cap.

1. There is no room for arguing that the note of the agreement made before the Court recorded anything otherthanthe agreement oftheparties.Onthe 15 contrary, the context of the agreement coincided with the nature of the claim raised under s.34, modelled on the understandingof the law before Gammell; whereas the figure agreed was consonant with the conventional figure awarded for loss of expectation of life. The application to amend, resting on Ord. 25 20 of the Civil Procedure Rules (providing for the amendment of pleadings and orders of the Court) had a twofold objective: (a)Tomodify thetermsoftheagreement oftheparties recorded on 23 May,
2. and (b) to amend the statement of claim by the addition of a 25 paragraph designed toraise onbehalf oftheestate aclaim forloss of future earnings. The inescapable inference isthatappellant invoked the powers conferred by Ord. 25 in order to vary or by-pass the agreement recorded on 23.5.
3. A certain inference is that the agreement affecting the claim under s.34, was made without knowledge or appreciation of the implications of the decisions in Gammell and Kassinou. The trial Court rejected theapplication ontheground thatwhatwassought to be amended was neither an error nor omission in the 35 declaration of the agreement, or an error in the order of a court amenable to correction or rectification under r.5 and r.6 of Ord. •{1980J2A1IE.R.
4. " (1984}1 C.L.R.
5. 586 30 1 C.L.R. Sofocll v. Leonldou PiklsJ. 25 Order 25 did not confer power, the Court noted, to vary the agreement of the parties In our judgment the tnal Judge was plainly nght The sole object of the application was to vary or abrogate the agreement between the parties as to quantum of 5 damage under s 34, Cap 189, by the employment of the powers conferred by Ord 25 The decision in Ioannts Iosif Hjihanm ν Elias Hanm Yiouselhs* is perfectly distinguishable from the present case since the correction in that case affected the calculation of interest within the context of the agreement of the 10 parties and not the agreement itself Otherwise, the caselaw is consistent in stressing that the powers of the Court under r 6 of Ord 25 are confined to the correction of clencal mistakes and errors arising from accidental slips or omissions The inherent power of the Court to correct errors or omissions isagain limited 15 to errors owing to failure to give expression in the order or judgment to the manifest intention of the Court** The inherent junsdiction of the Court to remedy errors in the process is not absolute but, as judicially acknowledged, confined to * .nattersnecessary tomaintainitscharacterasacourtof justice»*** 20 The Court has no authonty to upset the terms of a compromise between the parties, on the contrary it will, in good conscience, < xtend itspowers toimplementtheiragreement**** Ontheother hand, there is noauthonty underthesliprule tovary the terms of a compromise Asthecase of R ν Crrpps*****illustrates,the power 25 can only be invoked where theslipisevident, infact thepower to correct errors under thesliprule belongs tothe Courtand may in an appropnate case be exercised by a member of the Courtother than the one who made the order fraught with the error In de Lasala ν de Lasala****** itwas pointedoutthataconsentordercan 30 only be vaned on appeal or by a fresh action The Court has no power tovary the terms of theagreement of theparties as distinct from making orders in aid of its enforcement******* In Siebe •(1963J2CLR 407 " (See, inter alia KatannaSnipping ν Ship *Poly

(1978)1 CLR 486 Re Inchape Craiqmyiev Inchape

(1942)2AllΕR 157) *** (See, Bremer VulkanSchtffbau UndMaschmentabrikν South /ndia Shipping Corpn (1981]1 AllΕR 289,295 (HC), Corby DC ν Hoist&Co Ltd [198511AllΕR 321 (CA) J **" (AndersReden ν LovisaStevedoring Co

(1985)2A1IER 669 (Gouldmg,J) *""[1983]3AilER 72(CA) *""*[1979}2A11ER 1146(PC) ""'"(See also.Thwaitev Thwaite[198112AllΕR 789) 587 PikisJ. Soffocli v. Leonidou

(1988)Gorman & Co. Ltd. v. Pneupac Ltd.* it was explained that a consent order isof two kinds:(i)One recording an agreement of the parties, and (ii) an order of the Court founded on an agreement of the parties. Inthe lattercasetheorderreflectstheexerciseofjudicial power and as such itisamenable tovariation. Inthe former case thereis no power to vary the agreement of the parties except on like groundsasa contract maybe varied.** Theapplication foramendment inthiscasewassolelyintended 10 to vary the agreement of 23May, 1984,between theparties and therebyfree theappellantfrom theerrorunderwhichhe laboured astohisrightsunders.34, Cap. 189.Theerrorwasnot one of the Courtbutan errorderivingfrom amisappreciation oftherightsof the appellant. He could not get rid of the agreement by the 15 invocationofanyofthepowersvestedintheCourtunderOrd.25. The appeal isdismissed withcosts. Appeal dismissed withcosts. •[198211A1IE.R.377 (CA). **(See. abo. Chandless-Chandless v. Nicholson [19421 2 AllE.R.315 at 317,-\ HuddersSedBankingCo.Lid.v.Hewy Lister&SonUd.[1895}2Ch.273;Cnane) Ltdv.F.W. Wootworth& Co.Ltd.11981}i AllE.R. 745). 588 5