Brennan v Prior & Ors

A court order is interpreted objectively, in its documentary and factual context. The court considers the natural and ordinary meaning of the words, the order as a whole, its purpose, relevant background and business common sense, while disregarding subjective intention. If the order objectively expresses the original intention of the court but contains an accidental slip or omission, the slip rule may correct it. The rule cannot be used to give effect to a later change of mind. A costs order requiring payment from a legacy does not, without clear limiting language, cap personal liability at the legacy’s amount.

The claimant had unsuccessfully challenged her father’s will. The trial judge ordered her to pay the defendants’ costs, with the costs of the third to sixth defendants payable out of her pecuniary legacy before distribution. During detailed assessment, the Costs Judge questioned whether that provision capped recovery at the balance of the legacy.

The third to sixth defendants sought clarification or amendment under the slip rule. The claimant argued that the order limited her liability and that any substantive alteration required an appeal. The issues were the objective meaning of the order, the scope of the slip rule and the court’s inherent power to clarify its own order.

1. Construction. A court order is interpreted objectively by reference to its natural and ordinary meaning, the order as a whole, its purpose, the relevant background and business common sense, disregarding subjective intention. The prior costs judgment and the parties’ understanding at the hearing formed part of the relevant background.
2. Paragraph 3(1) imposed personal liability for the entirety of the third to sixth defendants’ assessed costs. Paragraph 3(2) directed the source and priority of payment: the costs were payable from the claimant’s legacy before distribution, but were not limited to that legacy. The words referring to costs not previously paid contemplated payment from another source.
3. The absence of a provision equivalent to paragraph 2(4) did not imply a cap. That provision dealt with the executors’ ability to recover an unpaid balance from the residuary estate. The third to sixth defendants had no equivalent claim against the executors.
4. Slip rule. CPR 40.12 could correct an order to give effect to the court’s original intention, but could not be used for a substantive change based on second thoughts. Since the order was clear on its proper construction, no correction under the slip rule was required.
5. The court nevertheless exercised its inherent power under Practice Direction 40B, paragraph 4.5, to clarify the order. Paragraph 3(2) was amended by adding words making clear that it did not limit the claimant’s liability under paragraph 3(1). Her personal liability was therefore not capped by her pecuniary legacy.

First-instance decision. The judgment records the earlier probate trial order made on 26 September 2013 by Mr Mark Herbert QC, sitting as a Deputy Judge of the High Court, and the subsequent issue raised during detailed assessment. The present court clarified and amended that order.