Falling over backwards, if at all: The “slip” rule and its application

Summary

Every now and then, a court may make an “error” when giving judgment and making an order. There are circumstances where the judgment or order can be amended without giving notice to the other side and without the need for another hearing, but parties must be careful to ensure any amendments reflect the original intention of the court at the time the judgment and the order were given.

The “slip” rule

It is a widely known but often-misunderstood part of the CPR, but per CPR 40.12, in relation to judgments and/or orders that have been sealed, the following can apply if necessary:

40.12

(1) The court may at any time correct an accidental slip or omission in a judgment or order.
(2) A party may apply for a correction without notice.

It is vital to note that the sole purpose of the rule is to allow amendments to be made to judgments and orders that are the result of typographical errors or any accidental omissions: it does not give parties scope to attempt to insert any further clauses into a judgment and order that did not reflect the thinking and the intention of the court at the time the judgment and order were given. Any substantive mistake (i.e. a mistake of law) may only be rectified by way of appeal under CPR 52 (although where the order or judgment has not yet been sealed, the Judge retains a power of review per CPR 40.3(1)).

This distinction was evident in Bristol-Myers Squibb Co v Baker Norton Pharmaceuticals Inc [2001] EWCA Civ 414 and more recently in Vucicevic & Anor v Aleksic & Ors [2020] EWHC 2236 (CH), where the applicant sought to amend an earlier order from 2007 to insert the details of the property (for land registration purposes in Montenegro) which was subject of the litigation. The court refused the application, stating that they were not asked to determine the exact details of the property for the purposes of land registration at the original hearing. In coming to their decision in Vucicevic, the court used the term “additional thoughts” (borrowed from Santos-Albert v Ochi [2018] EWHC 1277 (Ch) in justifying their decision; i.e. it was ruled that the slip rule is only applicable to give effect to the court’s “first thoughts or intentions” at the time of making the order.

The rule’s narrow application was seen also in Re A (a Child) [2014] EWCA Civ 871, where it was ruled that the slip rule cannot be used to correct findings of fact made in the judgment and not recited or set out in the order.

Finally, a Judge can used the slip rule to make a correction to give effect to the court’s intention at the time, even where the slip itself came from the accidental omission of counsel during the hearing and in drafting the order, per Riva Bella SA v Tamsen Yachts GmbH [2011] EWHC 2338 (Comm) [22-23].

Procedure

Per CPR 40BPD.4, where there is an accidental slip or omission in a judgment or order, a party can apply for it to be corrected. The application notice itself can be as informal as a letter to the court simply describing the error and setting out the correction sought. The application can be granted without the need for a hearing if either:

• The applicant requests for it to be dealt with without a hearing;
• Where there is consent from both parties; or
• Where the court considers that a hearing would not be required.

The Judge can deal with the application without notice if the error is obvious, or they may direct that notice is given to the other party or parties. If the application is opposed, then it should be requested for it to be listed before the Judge who originally gave the judgment and order.

In short, if you receive a judgment or order that appears to have a notable error in it, don’t panic! It is more likely than not that the error in question can be resolved quickly without the need for another hearing.

If you require advice or assistance with a matter such as the one outlined above or any other civil law matters, contact our team at clerks@becket-chambers.co.uk.