Practice and procedure – Charging order – Correction of error — Slip rule — Court making charging order over defendant’s property – Final charging order being drawn up with errors — District judge exercising power under slip rule to make amendments — Defendant appealing – Whether amendment significantly changing amount secured — Whether amendment permissible under slip rule – Appeal dismissed
The claimant was the tenant of a property owned by the defendant at 144 Verdant Lane, London SE6 which she occupied between 2011 and 2013. The property had damp, mould and other disrepair issues and the claimant brought proceedings in the county court for damages. The court found in favour of the claimant and ordered the defendant to pay general damages of £5,000 to the claimant, together with two-thirds of the costs of the proceedings to be subject to a detailed assessment if not agreed. The defendant was ordered to pay the damages of £5,000 together with an interim payment of £10,000 on account of costs.
When the defendant failed to make the payment as ordered, on 18 April 2015, a district judge made an interim charging order over the defendant’s interest in the property, charging that interest with payment of £15,000, together with any further interest becoming due and the costs of the application for the interim charging order. A final charging order was subsequently drawn up. However, it failed to include the claimant’s costs, which had been included in the earlier order and the claimant wrote to the court requesting it to exercise its powers under the slip rule in CPR r 40.12 to amend the final charging order accordingly.
The judge exercised her power under the slip rule, without notifying the defendant, and amended the final charging order to include “the sum of the amount now owing under a judgment or order given on 8 April 2015…together with any further interest becoming due”. The defendant’s application to have the charging order set aside was refused by the district judge.
The defendant appealed arguing that the slip rule in CPR r 40.12 was not to be used to make substantial amendments to an order and the effect of the judge’s amendment to the final charging order was to add a significant amount to the amounts secured by that order. The issues were whether the district judge had wrongly held: (i) that she could lawfully allow the claimant, on whose application the charging order had been made, to vary the terms of the charging order subsequent to the interim charging order; and (ii) that the defendant’s application to vary the terms of the charging order could only be made by way of appeal.
Held: The appeal was dismissed.
(1) Although CPR 40.12 used the word “slip”, its real purpose was to ensure that the order conformed with what the court intended, even if the error which had originally been made in drawing up the order was substantial. The key requirement in every case was that the order should reflect the actual intention of the court. The limitation was that there should genuinely have been an accidental error or omission: the slip rule should not be used to permit the court to have second or additional thoughts or to add a provision having substantive effect which was not in the contemplation of the parties or the court at the hearing. The ordinary and natural meaning of the amended final charging order was that it included the unpaid interest which had accrued on the £15,000 by 15 June 2016, together with any further interest that might become due after that date and fixed costs. In any event, the amendment which the district judge actually made under the slip rule could not be characterised as substantial. The only change made was the removal of the number of £15,000 to allow for accrued interest. Accordingly, there was no reason to go behind what the district judge said in her judgment to the effect that the amended final charging order was the order that she intended to make on 15 June 2016 or to suspect that that limited amendment was the product of any second thoughts: Bristol-Myers Squibb Co v Baker Norton Pharmaceuticals Inc [2001] EWCA Civ 414 applied.
(2) The district judge had been entitled to reject the defendant’s application, and the two grounds of appeal were unfounded. The first ground appeared to be a complaint that the court could not make an alteration varying the terms of the charging order after making an interim charging order. However, the amended final charging order did no more than was envisaged by the interim charging order. It simply brought up-to-date the amounts which were owing and unpaid including interest from the date of the interim charging order to the date of the final charging order. The second ground of appeal also failed because the amendments to the original final charging order were confirmed by the district judge to be what she had intended, they were perfectly understandable, and there was no basis upon which to find that they were the product of any second thoughts or that they added any new substantive provision. The district judge was right to conclude that any objection to the amended final charging order had to be by way of appeal.
Andrew Nicol (instructed by Carl Martin Solicitors) appeared for the defendant; Robert Brown (instructed by Anthony Gold Solicitors) appeared for the claimant.
Eileen O’Grady, barrister
Click here to read a transcript of Santos-Albert v Ochi
