Amendment - Order - Claimant obtaining judgment against defendant and parties agreeing order in usual manner

Riva Bella SA v Tamsen Yachts GmbH: QBD (Comm) (Mr Justice Eder): 12 September 2011

On 6 June 2011, judgment was handed down in a dispute between the parties (see [2011] EWHC 1434 (Comm)).

Following argument on various consequential matters, an order was agreed and was subsequently signed and lodged in the usual way. It was ordered, inter alia, that the claimant succeeded in the total sum of €54,900 and that the defendant’s counter-claim succeeded in the sum of €279,694.11 (see [1] of the judgment).

The claimant applied to the Court of Appeal for permission to appeal against the judgment and the result of the application was outstanding. The claimant did not pay the sums due under the order and applied pursuant to Civil Procedure Rule 40.12(1) to correct the order so as to reduce the amount of the counter-claim and to increase the amount of the claim due to an alleged arithmetical error.

CPR 40.12(1) stated to the effect that the court could at any time correct an accidental slip or omission in a judgment or order.

The defendant objected to the application.

The defendant submitted, inter alia: (i) relying on CPR 23.0.16.1 and also to sc52.1.30, that the claimant had not paid any of the amounts due under the order and was thereby in contempt of court, therefore the court should reject the instant application or at least decline to consider it unless and until the contempt was purged; (ii) that the instant was not a case which fell within the scope of CPR 40.12 as there was an agreed order between the parties, there was no accidental slip and that at most there was an omission by the claimant to argue the point which should have been taken at trial.

In support of (ii) the defendant referred to the commentary to CPR 40.12 which stated that ‘it is there to do no more than correct typographical errors… Although not limited to errors by the court or court officers, the rule is limited to genuine slips and cannot be used to correct an error of substance nor in an attempt to get the court to add to its original order’.

The application would be allowed.

(1) The court had a discretion whether to hear a contemnor who had not purged its contempt; and, regardless of what might be described as the general rule, as stated in CPR 23.0.16.1, it was preferable to ask whether, in the circumstances of the individual case, the interests of justice were best served by hearing a party in contempt or by refusing to do so, always bearing in mind the paramount importance which the court had to attach to the prompt and unquestioning observance of court orders (see [19] of the ­judgment).

In the instant case, even on the assumption that the claimant was a contemnor, the interests of justice were best served by hearing the claimant’s submissions and dealing with the claimant’s application on its merits. If that was indeed a case of an accidental slip or omission in a judgment or order within the meaning of CPR 40.12 which the court should correct then it would be wrong in ­principle or contrary to the interests of justice for the court to refuse to make the necessary correction (see [19] of the judgment).

(2) Although CPR 40.12 was generally of limited application and in particular the slip rule could not be used to enable the court to have second thoughts or to add to its original order, it was possible under the slip rule to amend an order to give effect to the intention of the court at the relevant time. The fact that the slip or omission might arise from the accidental omission of counsel did not mean that CPR 40.12 was not engaged nor that there was any bar to the exercise of the discretion under the slip rule (see [22], [23] of the judgment).

In the instant case, the figure of €279,694.11 was an arithmetical error and was properly described as an ‘accidental slip or omission in a judgment or order’ within the scope of CPR 40.12 as was the figure of €224,794.11. It had never been the court’s intention to award the defendant sums which it had already received.

Rather, the court’s intention was to award the defendant those sums which it was owed and which were still outstanding. No more, no less (see [23] of the judgment). In light of the foregoing, the overall quantum of the counterclaim was incorrect and had to be read subject to the instant judgment (see [27] of the judgment).

Peter Ferrer (instructed by Clyde & Co) for the claimant; Christopher Smith QC (instructed by Ben Macfarlane) for the defendant.