Gloyne v Richardson & Anor

The slip rule permits correction or completion of an order where an omission is genuinely accidental and the necessary further order is uncontentious. It cannot be used to give the court second thoughts or to determine substantive issues that were not argued. Where an issue, such as the currency of payment, was not canvassed, the order may be amended to preserve that issue for determination in properly constituted proceedings. A costs order made against a litigant in a representative capacity does not itself impose personal liability, although separate proceedings may address alleged maladministration or misapplication of estate assets.

The claimant had obtained declarations concerning repayment of money paid under a share option agreement. The Court of Appeal’s order required repayment of US$97,879 and interest, but did not mention the alternative sterling sum pleaded in the originating summons. The defendant, Mrs Richardson, applied under the slip rule to add that alternative sum and to clarify that the costs order was against her as executrix.

The currency issue had not been argued in the earlier appeal, which had concerned only construction of the agreements. The application therefore raised the scope of the slip rule and the effect of the existing costs order.

1. Application under the slip rule. The court reaffirmed that the slip rule cannot enable a court to have second or additional thoughts. It cannot be used for substantive judicial consideration of issues which were not previously canvassed. An omitted order may be added where counsel failed to draw an aspect of the case to the court’s attention and the further order is, in reality, uncontentious.
2. Alternative currency. The original relief sought repayment in US dollars or, alternatively, sterling. The Court of Appeal had dealt only with construction of the agreements and had been indifferent to the currency issue. The parties advanced potentially substantial arguments based on the agreements, restitution and the authorities on foreign-currency judgments, including Miliangos v George Frank (Textiles) Ltd [1976] AC 442. Since the issue had never been argued, the declaration was amended to include the alternative sum, while making clear that all arguments on currency remained live in the fresh first-instance proceedings.
3. Executrix capacity. The proceedings and the May 2001 judgment had been brought and given against Mrs Richardson as executrix. The existing costs order therefore operated in that representative capacity. Express amendment was unnecessary. Any claim to impose personal liability for costs based on wrongful dealing with estate assets or maladministration could be pursued in the fresh proceedings.
4. The order of 23 May 2001 was amended to include the alternative sterling sum, stated in the formal order as £62,944.66. There was no order as to costs.

• Court of Appeal (Civil Division): The court amended its order of 23 May 2001 under the slip rule to add the alternative sterling declaration. It declined to add express words stating that Mrs Richardson was liable as executrix because that clarification was unnecessary.
• High Court, Chancery Division: The underlying proceedings had been before Mr Justice Hart. The judgment does not give a citation for the High Court decision.