Dewa, R (on the application of) v Westminster City Council

CPR 40.12 is confined to correcting an accidental slip or omission in a judgment or order. It cannot be used to reopen the merits or recast reasons because a party later dislikes their implications. If the rule’s conditions are absent, the correction discretion does not arise and there is no basis for appellate intervention. The ordinary threshold for interfering with a discretionary decision remains an error of principle or a decision that is plainly wrong because relevant factors were not fairly balanced. Courts must adjudicate rights under the law as enacted; policy objections cannot extend a statutory regime beyond Parliament’s language.

Mr Dewa sought permission to appeal from Keith J’s order of 11 November 2004, which refused his application under CPR 40.12 to amend reasons given in an earlier judgment. In March 2002, the judge had quashed Westminster City Council’s decision that it lacked power under section 352 of the Housing Act 1985 to require works enabling access to cooking facilities. The judge had declared that the power existed and ordered the Council to reconsider whether to serve a notice, but had not required it to do so.

After the landlord offered Mr Dewa an adjoining room with cooking facilities, he sought to alter the judge’s reasoning so that the offer of a room exchange would no longer be treated as an alternative. The central issues were whether an accidental slip existed and whether the refusal disclosed a basis for appellate intervention.

Lady Justice Arden refused the application for permission to appeal, holding that there was no real prospect of success.

1. Scope of CPR 40.12. The application was confined to the slip rule. The court expressed no final view on whether reasons alone constitute a judgment for the purposes of CPR 40.12, but held that the rule could operate only if there had been an accidental slip or omission. The application could not be converted into a challenge to the merits of the earlier judgment. Since the judge had found no accidental slip, the correction discretion did not arise.
2. Earlier reasoning. The judge’s observations about the landlord’s possible steps arose from the issues he had to decide. There was no reason why he could not address the possibility of an exchange of rooms. Mr Dewa did not challenge the judge’s principal conclusions.
3. Appellate intervention. In any event, the Court of Appeal would intervene in a discretionary decision only for an error of principle or where the decision was plainly wrong because relevant factors had not been fairly balanced. This was the principle discussed in Phonographic Performance Ltd v AEI Rediffusion Music Ltd [1999] 2 All ER 299, through the passage from Roache v News Group Newspapers, and in G v G. That threshold was not met. The judge had considered Mr Dewa’s previous occupation of a larger room and was entitled to regard it as irrelevant.
4. Statutory context. Section 34(1) of the Housing Act 1988 prevented new protected tenancies, but did not prevent the landlord from offering room 13 in place of room 15A to an existing tenant. Any wider policy change was a matter for Parliament. The court’s duty was to apply the law as it stood.

Order: application refused.

• Court of Appeal (Civil Division) — On 4 May 2005, refused permission to appeal, finding no real prospect of success.
• High Court, Administrative Court — Keith J refused, on 11 November 2004, an application to amend the reasons in the earlier judgment. In March 2002, he had quashed the Council’s decision concerning its power under section 352 of the Housing Act 1985, declared that the power existed, and ordered reconsideration.