IC v RC

During 2019 I understand that the wife was suffering from cancer and continues to do so. On 1 August 2019, the wife through the solicitors then acting for her invited the husband to agree that the 2017 order be corrected. The husband refused, conveying this by email on 7 August 2019. On 22 August 2019, the wife applied to correct the 2017 variation order pursuant to the slip rule. Her application was made on the basis that there had been an error in the drafting of the order, namely that the order provided incorrectly for periodical payments to end on the husband’s remarriage rather than her own. The husband was given notice of that application and on 1 September 2019, he wrote to the court objecting to it. His letter made clear his belief that, upon his marriage, the periodical payments were to cease. He objected to the use of the slip rule which he understood to be for minor clerical omissions and typographical errors in court orders, saying “…This is most certainly not a minor error to me as it has far-reaching implications. My new wife and I have based our whole future on the income we have between us…”. He expressed concern that the alleged error had not been detected by the wife’s legal team or the court at the time the order was made in 2017.

On 2 September 2019, DJ Wright made a without notice order on the papers, having read the application made by the wife. The order stated as follows:

On 20 September 2019, the husband wrote to the court to ask for a review of the order. He also enclosed a copy of the letter he had sent to the court dated 1 September 2019. On 14 October 2019, DJ Wright conducted a hearing at which the husband appeared in person and the wife was represented by counsel. The transcript of that hearing made plain that DJ Wright heard submissions from both parties, the husband

On 29 October 2019, the husband applied for a variation of the periodical payments order and on 20 December 2019, the wife emailed the court indicating that she wished to enforce the periodical payments order. Regrettably, there were several procedural difficulties in listing. On 16 June 2020, DJ Wright listed the husband’s variation application for an FDR on 22 September 2020 and on 22 June 2020, the wife issued an application to enforce the periodical payments order.

On 23 July 2020, the husband had a conference with counsel via the direct access scheme and he notified the wife’s current solicitors of his intention to appeal the orders dated 2 September 2019 and 14 October 2019 on 28 July 2020. His notice of appeal was lodged with the court on 18 August 2020. That notice stated that he had not understood the apparent significance of the correction of the 2017 order until he had a conference with counsel. His decision to seek more specialist legal assistance was prompted by the wife’s application to enforce the arrears in June 2020.

This application is governed by Rule 30 and Practice Direction 30 of the Family Procedure Rules 2010 [“the FPR”]. Rule 30.4(2) provides that an appellant must file

Whilst an application for permission to appeal out of time is not an application for relief from sanctions, it is analogous to such a situation (see paragraph 16 of Altomart Limited v Salford Estates (No 2) Ltd [2014]EWCA Civ 1408). FPR Rule 4.6(1) provides a list of factors to be taken into account when considering relief from sanctions as follows:

Paragraphs 40-41 of Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 provide guidance on the approach to be adopted to applications for relief from sanctions. These can be summarised as follows: (i) if the failure to comply with the relevant rule, practice direction or court order can properly be regarded as trivial, the court will usually grant relief provided that an application is made promptly; (ii) if the failure is not trivial, the burden is on the defaulting party to persuade the court to grant relief; (iii) the court will want to consider why the default occurred. If there is a good reason for it, court will be likely to decide that relief should be granted, but merely overlooking the deadline is unlikely to constitute a good reason; (iv) it is necessary to consider all the circumstances of the case before reaching a decision that particular weight is to be given to the factors specifically mentioned in the rules. In Denton and others v TH White Ltd [2014] EWCA Civ 906, the Court of Appeal affirmed the guidance given in Mitchell and identified in paragraph 24 a three stage approach to applications for relief from sanctions in the context of the Civil Procedure Rules 1998. The first stage is to identify and assess the seriousness or significance of the failure to comply or default; the second is to consider the reason for the failure or default; and the third is to consider all the circumstances of the case so as to enable the court to deal justly with the application.

R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633 dealt with several issues of general application on relief from sanctions. So far as is relevant to financial remedy proceedings, Moore-Bick LJ held as follows;

The approach of the family court to this issue is set out in Cooper-Hohn v Hohn [2014] EWCA Civ 896 where Ryder LJ emphasised the need for compliance with rules and practice directions when dismissing an appeal from a refusal to grant a very late application to adduce expert evidence (see paragraphs 41-46). In Re W (A Child) Re H (Children) [2013] EWCA Civ 1177 the President stated that the court was entitled to expect strict compliance with orders and non-compliance could be expected to have and would usually have a consequence [see paragraph 52]. In Re H (Children) (Application to Extend Time: Merits of Proposed Appeal) [2015] EWCA Civ 583, the President stressed that the approach to relief from sanctions in family cases should not differ from that applied in the ordinary civil jurisdiction. He noted that this was a point that might be considered in more detail on a future appeal whilst indicating that the underlying merits of the case were a potential consideration (see paragraphs 38 and 41).

Permission to appeal may be given only where (a) the court considers that the appeal would have a real prospect of success or (b) there is some other compelling reason why the appeal should be heard (rule 30.3(7)). In Re R (A Child) [2019] EWCA Civ 895, the Court of Appeal affirmed the test for the grant of permission to appeal as being that the appeal would have a real prospect of success, namely a prospect of

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 (rule 30.12(3)). Paragraphs 11-14 of Re C (Relocation: Appeal) [2019] EWHC 131 (Fam) summarise the correct approach of an appellate court as follows;

Like any judgment, the judgment of the Deputy Judge has to be read as a whole, and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP [2014] EWHC 3964 (Fam), [2016] 1 FLR 228 , para 29, there is no need for the judge to “incant mechanically” passages from the authorities, the evidence or the submissions, as if he were “a pilot going through the pre-flight checklist.”

The task of this court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360 . I confine myself to one short passage (at 1372):

The “slip rule” is legal shorthand for FPR Rule 29.16 which reads as follows:

The court may at any time correct an accidental slip or omission in a judgment or order.

The slip rule is the mechanism whereby a clerical error of the court or its officials can be corrected or where error arises from some accidental slip or omission. Attempting to define in the abstract what constitutes an accidental slip or omission has been resisted in case law: as Goff LJ said at 195 of Mutual Shipping Corporation v Bayshore Shipping Co [1985] 1 Lloyd’s LR 189 “the animal is, I suspect, usually recognisable when it appears on the scene”. Correction pursuant to the slip rule is, however, limited to genuine error and cannot be used to correct an error of substance (see R v Cripps ex parte Muldoon [1984] 1 QB 686 CA; 3 WLR 465 at 473A-D).

It is possible under the slip rule to amend an order to give effect to the intention of the court though the slip rule cannot be used to enable the court to have second or additional thoughts. Once an order is drawn, any mistakes of substance must be corrected by an appellate court (see paragraph 25 of Bristol-Myers Squibb Co v (1) Baker Norton Pharmaceuticals Inc (2) Napro Biotherapeutics Inc [2001] EWCA Civ 414 per Aldous LJ).

Mubarak v Mubarak [2007] EWHC 220 (Fam) was a case where the very experienced counsel and/or judge made an error by an accidental slip or omission in the drafting of an order following a trial. Holman J corrected the order so that it properly reflected the court’s judgment thereby permitting the wife to apply to vary the postnuptial settlement. The court was satisfied that the earlier judge had not intended a once and for all order with respect to capital, but had in fact intended expressly and deliberately to keep the power to vary a postnuptial settlement open until the husband had paid the lump sum in full.

I note that, in Swindale v Forder [2007] EWCA Civ 29, the Court of Appeal held that there was an inherent jurisdiction to amend an order to make the meaning clear and to reflect the intention of the court [see paragraph 24].

Mr Maxwell-Stewart submitted that the issues raised by this appeal were sufficiently compelling for the grant of permission to appeal out of time. His case was that the 2017 order could not be amended under the slip rule because it was no longer an extant order. By the terms of the 2017 order, he submitted a clean break had been effected between the parties and there were no longer any legal relations between them subject to a court order. Thus, the court acted beyond its powers. He relied on the proposition that there was no reported case, on his research, where the slip rule had been used to revive an order that had ceased to have effect.

The grounds of appeal were as follows:

Mr Maxwell-Stewart placed much reliance on the fact that the 2017 order was no longer extant because the husband had remarried, thereby effecting a clean break between the parties with respect to financial provision following their separation and divorce.

I have decided to examine the merits of the appeal first as my conclusions are likely to guide my decision on permission and relief from sanctions.

Turning first to the court’s jurisdiction to amend the 2017 order under the slip rule, I am quite satisfied that the court had the jurisdiction to do so. FPR Rule 29.16(1) states that “the court may at any time correct an accidental slip or omission in a judgment or order” (my emphasis). The words “at any time” require no additional gloss or explanation and, further, there is no relevant ambiguity in the wording of the rule as a whole. Had it been intended that the jurisdiction pursuant to FPR Rule 29.16(1) only extended to extant orders, the rule would have so stated. It does not. I note that CPR Rule 40.12 is in identical terms to FPR rule 29.16 and likewise contains no provision limiting its application to extant orders.

There is a good reason for the absence of any time constraint in the ambit of the slip rule. This case is a perfect example. The error in the 2017 order - unrectified – deprived the wife of her entitlement to periodical payments once the husband remarried. That represented a significant injustice to her and moreover did not reflect the court’s intention at the time of the 2017 hearing and order. There is an additional and important point, namely that court orders should be accurate. In that context, I

In Space Airconditioning Plc v Guy [2012] EWCA Civ 1664, Mummery LJ stated in paragraph 53 that:

I was unpersuaded by Mr Maxwell-Stewart’s submission that the slip rule should not be used to correct an order which was not extant at the time of correction, in that here the husband’s remarriage had created a clean break between the parties in respect of any obligation to pay ongoing periodical payments. If I were to accede to that submission, I would be permitting the husband to benefit from an error in the order in a manner which the court never intended. That would be profoundly unjust to the wife.

Mr Maxwell-Stewart referred me to two decisions: Munks v Munks [1985] FLR 576 and T v T (Financial Provision) [1988] 1 FLR 480. Neither assisted his case.

In Munks, the registrar made an order by consent on 9 February 1983 which purported to dismiss all the wife’s claims for financial provision. On 17 February 1983 decree nisi was pronounced and on 4 May 1983 the marriage was dissolved by decree absolute. On 12 September 1983, the wife applied for financial provision which the husband countered with a plea of res judicata based on the consent order made on 9 February 1983. The wife challenged that order for want of jurisdiction as it was made before decree nisi was pronounced. A trial was held of a preliminary issue, namely whether the order made on 9 February 1983 was valid. Ewbank J ruled that the order was invalid or ineffective because ss. 23 and 24 of the Matrimonial Causes Act 1973 provided that the power of the court to make orders for financial provision arose on granting a decree of divorce or at an time thereafter and not otherwise. He considered that the error might be corrected under the slip rule by amending the date of the 9 February 1983 order to 17 February 1983, the date of decree nisi. The wife appealed and the Court of Appeal held that the registrar had no jurisdiction to make the order on 9 February 1983 as it was made before decree nisi. Ewbank J was also wrong to have used the slip rule in an effort to preserve an order made without jurisdiction. Munks can be distinguished from this case as, here, the District Judge did have the jurisdiction to make the order she did in April 2017. Correction of the erroneously drafted order in 2019 was not done to confer on the District Judge a jurisdiction which she did not have at the time she made the 2017 order.

In T v T, the parties had divorced. Following the divorce, a periodical payments order was made in favour of the wife and took effect until either the wife remarried, or the husband retired from his specified job or further order. After the husband retired, the wife applied for variation of the periodical payments order and her application was dismissed for want of jurisdiction. The wife’s appeal was dismissed as the periodical payments order could only be varied up until one of the specified events occurred, in this case, the husband’s retirement. That event brought the order to an end and the words “until further order” could not be relied upon to vary an order which had already terminated. Mr Maxwell-Stewart relied on this authority to demonstrate that, once an order had expired, there was no power of the court to revive it. The circumstances in this case are quite different as the wife did not apply to vary the

Further, I was unconvinced by Mr Maxwell-Stewart’s submission that the principles which arose on an application to set aside a financial remedy order were applicable. He relied on the following principles derived from J v B (Family Law Arbitration: Award) [2016] EWHC 324 (Fam) namely, (i) the application should be made reasonably promptly; (ii) the applicant must be able to show that he cannot obtain alternative mainstream relief which has the effect of broadly remedying the injustice caused by the absence of true facts; and (iii) the application if granted should not prejudice third parties who have, in good faith and for valuable consideration, acquired interests in property which is the subject matter of the relevant order.

An application to correct under the slip rule is simply not comparable to an application to set aside a financial remedy order for mistake. Put simply, an application to set aside an order based on mistake may be granted where the true facts on which the court made the order were not known by either the parties or the court at the time the order was made. In this case, there was no mistake as to the facts but there was an accidental error on the face of the order. I was not convinced that the principles derived from the case relied on by Mr Maxwell-Stewart could be properly applied to this application to correct under the slip rule. This was because the interests of justice in correcting an erroneous order outweighed the effect of delay in making the application especially in circumstances where rights had been lost. It also struck me as contrary to the interests of justice to require the wife whose rights had been extinguished or seriously compromised by an error on a court order to search for alternative and uncertain legal remedies outside those which would normally be available to her as divorced wife. The prejudice to her of not granting the application under the slip rule far outstripped any disadvantage to the husband. Finally, there was no comparable prejudice to third parties in this case as neither the husband nor his second wife had acquired an interest in property which was the subject of the disputed 2017 order. Property in this context cannot encompass an order for periodical payments.

It was clear that, in April 2017, District Judge Wright did not accede to the husband’s request to discharge in its entirety the periodical payments order. Paragraph 35 of her judgment made plain his ongoing liability for periodical payments to the wife. The judgment contained no discussion as to any variation of the trigger events which might bring that liability to an end. Neither did the transcript of the hearing. In the absence of anything that suggested that the District Judge was proposing to vary the trigger events terminating liability on the part of the husband to make periodical payments, I am satisfied that the court’s intention was to maintain the trigger events contained in the 2015 consent order. In coming to that conclusion, I am also fortified by the nature of the error in the 2017 order. It arose because, in the draft submitted to the court for approval, counsel then acting for the wife adopted the wording of the original 2015 order instead of altering paragraph 1(b) to reflect the fact that the wife was the respondent in the 2017 proceedings rather than the applicant (as she had been in the 2015 order). The error was wholly accidental and genuine though it was very unfortunate that it was not detected and corrected earlier.

The case law is plain that the slip rule can be used to correct an order to give effect to the court’s intention. That was the case here. The error here was not one of substance because the court had made no determination altering the trigger events which would bring the husband’s liability for periodical payments to an end. This was a case where the error on the face of the 2017 order was an error in expressing the manifest intention of the court.

It follows that grounds one and two lack merit and should be dismissed.

Ground three attacked the making of an order without notice to the husband. I can deal with this briefly. FPR Rule 29.16(2) permits an application under the slip rule to be made without notice. Having amended the order on the papers and without notice to the husband, District Judge Wright properly attached a notice to her order permitting the husband to apply to set aside, vary, or stay her order. He did so and the District Judge listed a hearing on 14 October 2019. The transcript of that hearing demonstrates that the court listened carefully, sympathetically and with an open mind to the matters raised by the husband. There was no prejudice to the husband in the procedure adopted by the court. Ground three lacks merit and should be dismissed

Ground four complained that the District Judge was wrong to exercise her discretion to amend the 2017 order. Mr Maxwell-Stewart complained that the wife’s delay in making the application pursuant to the slip rule should have militated against the correction of the order and said that the court should have taken into account the husband’s reliance on the 2017 order as originally drafted. He submitted that the husband had no remedy by which he might extinguish his liability for ongoing periodical payments.

I reject these submissions for the following reasons. First, the discretion to correct an order must be exercised in the light of the overriding objective in FPR rule 1.1(1) which is to deal with cases justly. Just dealing 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. Second, the husband did have a remedy in respect of his liability for periodical payments, namely he could make an application for variation. That application would allow the court to examine his present circumstances alongside those of the wife and take into account, as a relevant matter, his reliance to his detriment on the erroneous 2017 order. Indeed, I note that the court is presently seised of precisely such an application. The passage in the October 2019 transcript cited in paragraph 12 above made plain that the District Judge took both those factors into account when reviewing her decision. Further elaboration by her was unnecessary.

Third, the complaint that the wife delayed in making the application suggested some sort of deliberate default on her part. I do not consider that to be a submission of any real substance. It is easy to see how both parties relied on an erroneous order and did not appreciate the significance of the error on its face. The husband was a litigant in person and relied on what was stated on the face of the 2017 order without apparently appreciating that the court had in no way altered the 2015 trigger events. The wife left court with an understanding that, though the amount of the periodical payments had reduced, nothing else had changed with respect to them. She was legally represented and, unsurprisingly, did not feel the need to scrutinise the order when it was approved. The husband’s letter in October 2018 would not have alerted her to the error on the

Finally, I consider it undesirable for an application pursuant to the slip rule to be rendered unnecessarily complex. The court will properly have regard to all the circumstances when considering such an application, but it seems to me that, save in the most unusual of circumstances, the interests of justice in correcting an inaccurate order are likely to prevail over other considerations. There was no good reason in this case not to correct the erroneous 2017 order.

I dismiss this appeal by the husband. I do so in the knowledge that both parties have been affected by the error on the 2017 order and sympathise with them both. The husband’s variation application will provide a proper opportunity for the court to scrutinise the parties’ financial affairs and to make the orders it considers just having done so.

Turning to the grant of permission, I would not have granted permission to appeal. This case did not cross the threshold of having a real prospect of success on appeal as the above analysis demonstrates. Additionally, there was no other compelling reason to hear this appeal. The absence of decided case law on this very narrow issue was insufficient to warrant the grant of permission and there was no important point of law which needed clarification. Whilst I do not doubt that this decision will serve as a salutary reminder to practitioners and judges to exercise great care in the drafting and approval of court orders, that circumstance alone cannot justify the grant of permission let alone the costs incurred by both parties.

Should the husband be entitled to an extension of time to make his application for permission? His application for permission to appeal was made very late indeed. The delay was substantial and there was simply no good reason for the husband’s failure to make a timely application. The fact that the husband was, until very late in the day, a litigant in person did not constitute a good reason for failing to comply with the rules. Likewise, the husband’s failure to seek legal advice until about eight months after the time for appealing the order of 14 October 2019 had expired cannot justify the length of the delay in this case. Finally, the wife has been put to inconvenience and expense in defending this appeal and, in uncertain health, had to await the resolution of this appeal before the husband’s variation application could be once more listed for financial dispute resolution. It remains to be so listed and is likely to be much delayed.

Taken together, all those relevant matters in FPR Rule 4.6(1) militate against the grant of relief from sanctions. Standing back and looking at all the circumstances including any necessarily limited consideration of the merits, I have decided that I should refuse

I repeat my sympathy for both the husband and the wife. That sympathy does not, however, justify the husband’s application in this case.

That is my decision.