Gloyne v Richardson & Anor

The slip rule permits correction of an accidental omission where the additional order is in reality uncontentious. It does not permit the court to have second or additional thoughts, or to decide substantive issues that were not previously canvassed. An application to add an order for payment cannot be made under the slip rule where the respondent may raise substantive defences, including questions concerning an executor’s liability.

The court had previously declared that Mr Gloyne was entitled to recover money paid under a mistake of fact. The originating summons had sought declarations concerning the construction of a share option agreement, rather than an order for payment. Mr Gloyne later applied under the slip rule to add such an order against Mrs Richardson, the deceased payee’s widow and executrix. Mrs Richardson asserted that she would have raised defences, including plene administravit, had payment been sought at the earlier hearing. The issue was whether the omission could properly be corrected under the slip rule.

1. Application refused. The court’s earlier proceedings concerned the construction of the relevant option agreement and related declarations. References in the earlier judgment to an obligation to pay were made in that context and did not determine liability to make a payment order after consideration of possible defences.
2. The slip rule cannot be used to decide a substantive question between the parties. The court cannot use it to consider issues which were not previously canvassed. The principle stated in Bristol-Myers Squibb Co v Baker Norton Pharmaceuticals Inc [2001] EWCA Civ 414 that the rule cannot enable a court to have second or additional thoughts applied to this situation.
3. The rule may permit a further order where counsel omitted to draw an aspect of the case to the court’s attention, but only where the matter is in reality uncontentious. Here, an order for payment would have attracted objections and required determination of whether Mrs Richardson could rely on her proposed defences and of their merits.
4. The making of an order under Part 36.21(2) did not imply that the court had decided the unresolved payment issues. Any claim for payment had to be pursued by fresh process, in which the proposed defences could be raised. Mrs Richardson’s amendment application was adjourned for restoration, and Mr Gloyne was ordered to pay £4,000 costs, set off against costs orders in his favour.

• Court of Appeal (Civil Division): Following an earlier appeal decision dated 18 May 2001, the court refused Mr Gloyne’s application to amend the order under the slip rule. The proceedings were stated to have arisen from the High Court, Chancery Division, before Mr Justice Hart.