Tracy & Anor v Jones

The slip rule may correct an obvious clerical error in recording the order actually made, including a costs order. Where the mistake is clear from the contemporaneous materials and circumstances, leaving it uncorrected may cause serious injustice. A party cannot rely on a premature decision where the judge promptly offers reconsideration and the party declines that opportunity. An adjournment may be refused where attendance is unnecessary and proceedings have already been excessively delayed.

The applicants challenged the correction of a costs order made in 1992 after the High Court had refused a mandatory injunction. The order as drawn stated that costs were payable by the defendants, although there was only one defendant and two claimants.

In 2000, the defendant sought correction under the slip rule. Lightman J initially corrected the order before the applicants’ time for replying had expired, but promptly acknowledged the oversight and invited further submissions. The applicants declined that opportunity. Lightman J reconfirmed the correction on 27 July 2001.

The Court of Appeal was asked to adjourn the hearing, grant permission to appeal, and declare various orders in the underlying proceedings null and void. The central issues were whether the costs order had been properly corrected and whether the alleged procedural defects justified appellate intervention.

Applications refused. Lord Justice Simon Brown refused the applications for an adjournment, permission to appeal against Lightman J’s order of 27 July 2001, and a declaration that orders in the underlying proceedings were null and void.

1. The medical certificate did not justify an adjournment. Mr Tracy’s attendance was unnecessary, Mrs Tracy could appear, and she had acted as spokesperson for both applicants. The proceedings had already been excessively protracted and delayed, and neither applicant could materially assist on the application.
2. The challenge to the costs correction was wholly misconceived. The original order recorded costs as payable by defendants, although there was only one defendant and two claimants. The contemporary documents supported the conclusion that the order actually made required the claimants to pay the defendant’s costs. The High Court was entitled to use the slip rule to correct the obvious clerical mistake. In the Court of Appeal’s view, leaving the mistake uncorrected would have caused gross injustice to the defendant.
3. The judge’s premature ruling did not justify permission to appeal. He promptly acknowledged that the applicants’ time for replying had not expired, offered to reconsider the matter in light of further submissions, and considered the material later submitted. The applicants declined the opportunity before pursuing their application.
4. The complaints of procedural impropriety, breach of natural justice, bias, bad faith and disregard of relevant matters disclosed no point of substance. Much had already been addressed in Arden LJ’s earlier judgment.

Lord Justice Simon Brown added that, if the litigation continued, the High Court might be invited to consider a Civil Proceedings Order under section 42 of the Supreme Court Act 1981. This was a prospective warning, not an order under that provision.

1. Court of Appeal (Civil Division): On 10 July 2002, Lord Justice Simon Brown refused the applications for an adjournment, permission to appeal and a declaration.
2. Earlier Court of Appeal consideration: On 24 May 2001, Arden LJ refused permission to appeal but indicated that the applicants could return to Lightman J with further submissions.
3. High Court (Chancery Division): Lightman J corrected the 1992 costs order under the slip rule and reconfirmed the correction on 27 July 2001 after further submissions had been invited.