A (A Child)

The slip rule permits correction of an accidental slip or omission in a court’s formal judgment or order. It does not permit a party to reopen the judge’s reasons or ordinary findings of fact after the order has been made. Such findings cannot ordinarily be appealed unless they form part of an appealable determination or affect the operative order.

A judicial order is construed objectively in the circumstances in which it was made. The court’s reasons are admissible and may establish that an apparent drafting error does not obscure what the order required.

Two appeals arose from long-running proceedings under Schedule 1 to the Children Act 1989 concerning financial provision for a child. The father first challenged HHJ Horowitz QC’s refusal in August 2013 to amend factual findings and reasons in a judgment delivered in 2011. He contended that the corrections could be made under the slip rule.

The second appeal concerned HHJ Plumstead’s finding that the father had breached an order requiring a revised Form E. Although the order should have referred to Form E1, the judge found that its intended meaning was understood. The central issues were whether the refusal to alter the earlier reasons was appealable and whether the disclosure order could be construed as requiring Form E1.

1. Both appeals were dismissed unanimously. Permission was granted for the first appeal, but the Court of Appeal had no power to require the judge to alter the reasons and ordinary factual findings recorded in his completed 2011 judgment.

2. Section 16 of the Senior Courts Act 1981 and CPR 52.10 confer appellate jurisdiction in respect of a judgment or order. That expression ordinarily identifies the operative determination, rather than every reason or factual finding contained in the judge’s narrative judgment. A party cannot appeal an unwanted factual finding while accepting the determination itself, unless the finding forms part of an independently appealable issue or determination.

3. CPR 40.12 permits correction of an accidental slip or omission in a judgment or order. It did not authorise the proposed recasting of HHJ Horowitz QC’s findings and reasons. Before an order is made, a judge may withdraw the judgment and amend the reasons or decision. Once the order is made, the judge is functus officio apart from the power to correct accidental slips in the order. The dissatisfied party’s remedy is then an appeal against the operative determination within the applicable time.

4. The modern circulation of reserved judgments in draft gives parties an opportunity to identify typing mistakes and obvious factual errors. It does not provide an opportunity to reopen deliberate findings or advance further substantive argument. Underhill LJ added that a judge may retain some power to correct an obvious error after finalisation, but it did not follow that a refusal to exercise such a power was appealable.

5. The disclosure order was properly construed as requiring a revised Form E1 despite its reference to Form E. Construction is objective and contextual. The language is read in the circumstances patent to the parties when the order was made, and the court’s reasons are admissible to identify the issue which the order addressed. The proceedings, recital, judgment and parties’ correspondence made the intended form unmistakable. The father therefore breached the order by failing to provide Form E1 within time, and the contempt finding and costs order stood.

• Court of Appeal (Civil Division): Permission to appeal was granted on the first appeal, but both appeals were dismissed by [2014] EWCA Civ 871.
• High Court, Family Division — HHJ Plumstead: On 23 October 2013 the father was held in contempt for failing to comply in time with the disclosure order. No punitive order was made because he had subsequently served Form E1, but he was ordered to pay £416 costs.
• High Court, Family Division — HHJ Horowitz QC: On 29 August 2013 the substantive financial application was adjourned, further disclosure was ordered and the father’s application to correct the judge’s 2011 reasons was refused.