Riva Bella S.A. v Tamsen Yachts GmbH

CPR 40.12 permits correction of an accidental slip or omission where necessary to give effect to the court’s actual intention. The rule is limited: it cannot enable the court to have second thoughts, add to its order, or reopen an issue merely because a party failed to argue it at trial. An arithmetical error originating in counsel’s submissions may nevertheless be corrected, even where it was carried into an agreed and perfected order. The relevant question is what the court intended to order when judgment was given.

The claimant applied under CPR 40.12(1) to correct a perfected order made after trial. The order stated that the defendant’s counterclaim succeeded for €279,694.11 and gave judgment for the net sum of €224,794.11. The parties accepted that the counterclaim figure contained an arithmetical error and that payments already credited in the defendant’s pleaded case had not been properly reflected in the final submissions or order.

The defendant opposed correction. It argued that the claimant had failed to comply with the order and that the alleged error resulted from a failure to raise the point at trial. The central issues were whether the error was an accidental slip or omission within CPR 40.12, and whether the court should hear the application despite the claimant’s alleged non-compliance.

1. Application granted. The court corrected the order so that the defendant’s counterclaim succeeded for €230,888.51, and the consequential judgment sum was €175,988.51. The interest calculation was also to be corrected.

2. CPR 40.12 has limited scope. It cannot be used to give the court second thoughts, to add to the original order, or to permit a party to advance a new substantive case. However, following Bristol-Myers Squib Co. v Baker Norton Pharmaceuticals Inc (No 2) [2001] RPC 45, the rule permits amendment of an order to give effect to the court’s intention.

3. The error here was an accidental slip or omission. The figure in the order resulted from an arithmetical error in the defendant’s closing submissions, which the claimant’s counsel failed to identify and which was carried into the agreed draft order. The court had intended to award only sums still owed, not sums already received. An accidental omission by counsel does not prevent the rule from applying: Re Inchcape [1942] Ch 394; Fritz v Hobson (1880) 14 Ch D 542.

4. The fact that the draft order had been agreed and perfected did not prevent correction. Leo Pharma v Sandoz Ltd [2010] EWHC 1911 concerned a different situation in which the court had no specific intention as to the form of order. Here, the court’s intention was sufficiently clear.

5. Although the court attaches paramount importance to prompt and unquestioning compliance with its orders, it has a discretion whether to hear an alleged contemnor who has not purged the contempt. Even assuming that the claimant was a contemnor, the interests of justice required the application to be heard because the alleged breach concerned an order said to contain an accidental error. Motorola Credit Corp v Uzan (No 2) [2004] 1 WLR 113 did not assist the claimant on the particular facts.

6. A further disputed payment, raised only after judgment, could not be relied upon to correct the order under the slip rule. Any remedy in respect of that payment lay elsewhere, if at all.

Counsel were requested to agree the form of order and costs, failing which outstanding issues would be determined by the court.

The judgment states that the claimant had applied to the Court of Appeal for permission to appeal against the earlier judgment, but the result was outstanding. The present decision was a first-instance determination of the application to correct the order under CPR 40.12.