Leo Pharma A/S & Anor v Sandoz Ltd

The slip rule is confined to accidental slips or omissions in a judgment or order. It does not permit a party to withdraw from terms deliberately agreed by counsel and incorporated into an order, even where the court did not debate the precise terms at the hearing. A subsequent agreement settling matters left for drawing up is within the court’s intention and is not an accidental error. The court should also be cautious before going behind counsel’s signed agreement, particularly where the party later relied on the agreed provision.

Following a patent infringement trial, the court made an order providing for disclosure, an election between an account of profits and an inquiry into damages, and payment of sums found due with interest at the judgment rate from the date of the order.

Sandoz applied under CPR r. 40.12 to delete the interest provision or remove the specified rate and period. It argued that the provision had not been ordered or discussed at the hearing and had resulted from counsel’s mistake. Leo maintained that the provision had been agreed when the parties settled the form of order. The issue was whether the order contained an accidental slip or omission within the slip rule.

1. Application dismissed. The order was not corrected under CPR r. 40.12.
2. The slip rule is limited to accidental slips or omissions. It may correct a typographical or careless error and may make the court’s intention plain, but it does not provide a general power to revise an order because a party later regrets agreed terms.
3. The court had not formed a definite intention at the hearing about the precise rate or period of interest. Those matters were left to be settled in drawing up the order. The parties then agreed Leo’s draft, including the interest provision, and counsel signed the minute. That agreement was within the scope of the court’s intention and was not an accidental slip or omission.
4. The case was materially different from Bristol Myers Squibb v Baker Norton Pharmaceuticals, where the order had an unintended effect inconsistent with the court’s intention. Here, the agreed wording did not produce such an inconsistency.
5. The court applied the caution illustrated by SmithKline Beecham and others v Apotex Europe Limited and others. It should be slow to go behind an apparent agreement between counsel, especially where the evidence showed that Sandoz knew, or ought to have known, that it was agreeing to the interest provision and later relied on it.
6. Sandoz had compromised its objection to save costs and had chosen not to restore the matter for argument. The evidence did not establish a qualifying mistake. A separate argument that the interest provision was beyond jurisdiction was not pursued and was left undecided.

The judgment records that Sandoz’s appeal from the underlying patent infringement decision was dismissed by order dated 17 November 2009. The present decision concerned Sandoz’s subsequent application to correct the post-trial order.