Slip ups and the slip rule: IC v RC [2020] EWHC 2997 (Fam)

Background

IC (“H”) and RC (“W”) had married in 1985 and had separated in 2014, after nearly 29 years of marriage. In November 2015, DJ Wood had approved an order in financial remedy proceedings which had been agreed between the parties. That order made provision for H to pay periodical payments to W, to end on (a) the death of either party, (b) W’s remarriage, or (c) further order. In that order, W was recorded as being the applicant, and H the respondent.

In October 2016, H applied to vary the periodical payments order. At about the same time, W applied to enforce the periodical payments order, since H had not paid her anything since July 2016. Following a contested hearing of both applications in April 2017, DJ Wright varied the periodical payments and remitted a portion of the arrears. The judgment made clear that H had a continuing obligation to pay periodical payments to W.

W was represented by counsel, while H was a litigant-in-person. W’s counsel therefore drafted the order, which was then approved by the judge. However, the order provided that:

‘The above payments shall end on the first to occur of:

(a) the death of either the Applicant or Respondent;

(b) the Applicant’s remarriage; or

(c) further order.’

Since H was identified as the applicant in the 2017 order, the order therefore erroneously provided that periodical payments would end upon H’s remarriage, rather than W’s remarriage.

In October 2018, H wrote to W to inform her that he was getting remarried. He remarried in February 2019, and a few weeks later wrote to W to tell her that he was no longer going to pay her periodical payments because ‘the court order allows for the payments to stop upon marriage’.

In August 2019, W wrote to H through solicitors and invited him to agree that the 2017 order should be corrected. H refused, and W applied to the court to correct it pursuant to the slip rule. H was given notice of that application and wrote to the court objecting to it.

However, in September 2019, only a day after H had written to the court, DJ Wright made a without notice order on the papers in which she amended the 2017 order under the slip rule, having read W’s application. H then wrote to the court to ask for a review of the order, and a hearing took place in October 2019. At that hearing, DJ Wright explained that the 2017 order had been erroneously drafted, and made clear to H that if his circumstances had changed and he could no longer pay periodical payments in the sum ordered, he was at liberty to make an application to vary the order.

At the end of October 2019, H applied for a variation of the periodical payments order, and W later emailed the court indicating that she wished to enforce the order (although she did not issue an enforcement application until June 2020).

In July 2020, H (who had previously acted in person) had a conference with counsel via the direct access scheme, and later notified W’s solicitors of his intention to appeal the orders made by DJ Wright in September and October 2019. He lodged his notice of appeal in August 2020. In that notice, he stated that he had not understood the apparent significance of the correction of the 2017 order until he had had a conference with counsel. His decision to seek more specialist legal assistance was, he said, prompted by W’s enforcement application.

This was the hearing of H’s application for permission to appeal, and, if successful, of his application to appeal the orders made by DJ Wright. He sought to set aside those orders.

The legal framework: appeals

FPR r 30.4(2) provides that an appellant must file an appellant’s notice at the appeal court within 21 days after the decision of the lower court against which the appellant wishes to appeal, unless the lower court has directed otherwise. FPR r 4.1(3)(a) provides that, except where the rules provide otherwise, the court may extend or shorten the time for compliance with any rule, practice direction or court order, even if an application for an extension is made after the time for compliance has expired.

Gwynneth Knowles J noted that while an application for permission to appeal out of time is not an application for relief from sanctions, it is analogous to such a situation. She set out the list of factors provided by FPR r 4.6(1) which are to be taken into account when the court is considering relief from sanctions, and cited the guidance given in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, as affirmed in a three-stage format in Denton and others v TH White Ltd [2014] EWCA Civ 906. The three stages are to:

1. Identify and assess the seriousness or significance of the failure to comply or default;

2. Consider the reason for the failure or default; and

3. Consider all the circumstances of the case so as to enable the court to deal justly with the application.

Gwynneth Knowles J also noted the parts of the judgment of Moore-Bick LJ which are relevant to financial remedy proceedings in R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633, a case concerned with relief from sanctions. Moore-Bick LJ held as follows:

• Shortage of funds does not provide a good reason for delay. Unfortunately, many litigants are forced to act on their own behalf, and the rules apply to them as well.

• Being a litigant-in-person with no previous experience of legal proceedings is not a good reason for failing to comply with the rules.

• In most cases, the merits of the appeal will have little to do with whether it is appropriate to grant an extension of time, and the court should firmly discourage argument directed to the merits.

FPR r 30.3(7) sets out that permission to appeal may be given only where (a) the court considers that the appeal would have a real (i.e. a realistic as opposed to fanciful) prospect of success, or (b) there is some other compelling reason why the appeal should be heard.

FPR r 30.12(3) says that an appellate court will allow an appeal where the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity in the proceedings of the lower court.

The legal framework: the slip rule

FPR r 29.16 (which is identical to CPR r 40.12) says that (1) the court may at any time correct an accidental slip or omission in a judgment or order, and (2) that a party may apply for a correction without notice. It is possible to amend an order to give effect to the intention of the court, but the slip rule cannot be used to enable the court to have second or additional thoughts. Once an order is drawn up, any mistakes of substance must be corrected by an appellate court (Bristol-Myers Squibb Co v (1) Baker Norton Pharmaceuticals Inc (2) Napro Biotherapeutics Inc [2001] EWCA Civ 414).

H’s position

It was argued on behalf of H that the issues raised by H’s appeal were sufficiently compelling for the court to grant permission to appeal out of time. H’s case was that the 2017 order was no longer extant (and therefore could not be amended) because he had remarried, thereby effecting a clean break between the parties with respect to financial provision following their divorce.

The decision of Gwynneth Knowles J

Gwynneth Knowles J firstly examined the merits of the appeal, since her conclusions were likely to guide her decision on permission and relief from sanctions.

Grounds 1 and 2 of H’s appeal

H argued (1) that the court was wrong to make the 2019 orders allowing the 2017 order to be amended under the slip rule, and (2) that the court was wrong to amend the order under the slip rule because it had no power, authority or jurisdiction to amend an order that had ceased to have effect.

Gwynneth Knowles J was ‘quite satisfied’ that the court had jurisdiction to amend the 2017 order under the slip rule, since FPR r 29.16(1) says that the court may make a correction ‘at any time’ [31]. Those words ‘require no additional gloss or explanation and, further, there is no relevant ambiguity in the wording of the rule as a whole’ [31].

This case was a ‘perfect example’ of the fact that there is a good reason for the absence of any time constraint in the ambit of the slip rule [32]. The 2017 order, unrectified, deprived W of her entitlement to periodical payments once H remarried, which ‘represented a significant injustice to her and moreover did not reflect the court’s intention at the time of the 2017 hearing and order’ [32]. Furthermore, ‘court orders should be accurate’, and FPR r 29.12(2) provides that a copy of an order made in open court will be issued to any person who requests it, which underscores the need for accuracy [32]. Correction ‘of accidental slips or omissions at any time is thus consistent with the interests of justice and the fair resolution of proceedings’ [32].

H’s argument that the slip rule should not be used to correct an order not extant at the time of correction (in that H’s remarriage had created a clean break) was not persuasive, since if Gwynneth Knowles J had acceded to it, she would have been ‘permitting the husband to benefit from an error in the order in a manner which the court never intended’, which would be ‘profoundly unjust’ to W [34].

It was submitted on H’s behalf that the principles which arise on an application to set aside a financial remedy order were applicable. Gwynneth Knowles J thought that an ‘application to correct under the slip rule is simply not comparable to an application to set aside a financial remedy order for mistake’ [39]. In this case, ‘there was no mistake as to the facts but there was an accidental error on the face of the order’ [39].

In 2017, DJ Wright did not accede to H’s request to discharge in its entirety the periodical payments order, and her judgment made plain that H had an ongoing liability for periodical payments to W. The judgment contained no discussion as to any variation of the trigger events which might bring H’s liability to an end, and neither did the transcript of the hearing.

Gwynneth Knowles J was satisfied, in the absence of anything that suggested that DJ Wright was proposing to vary the trigger events terminating liability on the part of H to pay periodical payments, that ‘the court’s intention was to maintain the trigger events contained in the 2015 consent order’ [40]. The error in the 2017 order was ‘wholly accidental and genuine’, and arose because W’s counsel had adopted the wording of the 2015 order and had not reflected the fact that in 2017, W was the respondent, and not the applicant, as she had been in 2015 [40]. The slip rule can be used to correct an order to give effect to the court’s intention, which was the case here.

Grounds one and two of the appeal therefore lacked merit and were dismissed.

Ground 3

H’s third ground of appeal was that the court was wrong to amend the 2017 order on a without notice basis, and that for the court to have done so was procedurally irregular and prejudiced H because it put the onus on him to argue why the without notice order should be set aside.

However, FPR r 29.16(2) expressly permits an application under the slip rule to be made without notice. In any event, once DJ Wright had amended the 2017 order on the papers and without notice to H, she then attached a notice to her order permitting H to apply to set aside, vary or stay her order. He did so and there was a hearing where the court listened carefully to H. The third ground therefore also lacked merit and was dismissed.

Ground 4

The fourth ground of appeal was that even if the court had had the power to amend the 2017 order pursuant to the slip rule, it was wrong to do so because (i) of the delay between the making of the order and the application to amend, (ii) H had arranged his personal and financial affairs in reliance on the 2017 order, and (iii) H had no other remedy, whereas W had a remedy against her former lawyers.

Gwynneth Knowles J rejected H’s submissions for the following reasons:

1. The discretion to correct an order must be exercised in the light of the overriding objective in FPR r 1.1. Dealing justly with the case ‘required the court to correct an accidental error on the 2017 order which, if not corrected, deprived the wife of her entitlement to ongoing periodical payments and failed to give effect to the court’s intention’ [45].

2. H did have a remedy in respect of his liability for periodical payments, namely an application for variation (which he had in fact made).

3. The complaint that W delayed making the application suggested some form of deliberate default on her part. However, W was legally represented and unsurprisingly did not feel the need to scrutinise the 2017 order when it was approved. H’s letter notifying her that he was going to get remarried did not even mention the 2017 order, and would not have alerted her to any error on the face of the order.

The letter H sent W at the end of February 2019, after he had remarried, did place her on notice that he would no longer make periodical payments in reliance on the 2017 order. Indeed, W did later consult solicitors, who wrote to H on 1 August 2019. However, in 2019 W was suffering from cancer and ‘this might have understandably caused her to prioritise her health and treatment’ [46]. In any event, any delay in applying for correction of the 2017 order may not, of itself, have operated to disadvantage H if he had already made new financial arrangements at about the time of his remarriage.

4. It would be ‘undesirable for an application pursuant to the slip rule to be rendered unnecessarily complex’ [47]. Save in the most unusual of circumstances, ‘the interests of justice in correcting an inaccurate order are likely to prevail over other considerations’ [47].

This ground was therefore also dismissed.

Gwynneth Knowles J ‘would not have granted permission to appeal’, because H’s case did not have a real prospect of success, and there was no other compelling reason to hear it [49]. Taken together, the relevant matters in FPR r 4.6(1) militated against the granting of relief from sanctions and the granting of an extension of time to H to make his application for permission, because:

(i) It was made very late indeed, and there was no good reason for failing to comply with the rules;

(ii) His failure to seek legal advice for many months could not justify the length of the delay; and

(iii) W had been put to inconvenience and expense in defending the appeal, and she had had to await the resolution of the appeal before H’s variation application could be listed for FDR. That hearing had not yet been listed at the time of the judgment and was likely to be much delayed.

Henrietta Boyle, Barrister at 1 Hare Court