Santos-Albert v Ochi

The slip rule permits correction of an accidental error or omission so that an order reflects the court’s actual intention. The size or financial significance of the correction is not decisive. The rule cannot be used to introduce a substantive provision which was not contemplated at the hearing, or to permit second thoughts.

A final charging order may update the amount secured to include sums due and accrued interest at the date of the order. It does not secure costs which had not yet been assessed or become due unless the order clearly provides for costs becoming due on assessment. An objection that an amended order does not reflect the court’s intention must ordinarily be pursued by appeal.

The claimant obtained judgment in the County Court for damages and costs arising from disrepair at residential premises. An interim charging order was made over the defendant’s interest in the property. On 15 June 2016 the District Judge made a final charging order, which was later amended under CPR 40.12 after the claimant’s solicitors said that the drawn order did not reflect the order made at the hearing.

The defendant applied to set aside or vary the amended order, contending that the amendment substantially enlarged the charge by including assessed costs. The District Judge refused that application, discharged the charge after payment, and dismissed the related Part 8 sale claim. Permission to appeal was granted on the first two grounds. Permission on the third ground was refused, but was renewed before the High Court.

1. Appeal dismissed. The amended final charging order correctly reflected the District Judge’s intention and did not enlarge the charge to include costs which had not been assessed or become due.
2. CPR 40.12 permits the court to correct an accidental slip or omission so that an order conforms with its actual intention. The fact that the correction may have substantial financial consequences does not prevent use of the rule. The essential limitation is that the correction must address a genuine accidental error or omission, rather than introduce a new substantive provision or give effect to second thoughts. This approach was supported by Bristol-Myers Squibb v Baker Norton Pharmaceuticals (No 2) [2001] RPC 45.
3. Under section 1(1) of the Charging Orders Act 1979, a charging order may secure money due or to become due under the relevant judgment or order. The amended order removed the outdated figure of £15,000 and therefore secured the amount owing under the judgment as at 15 June 2016, including accrued interest, together with further interest and fixed costs.
4. The order did not secure the claimant’s two-thirds costs because no final costs certificate had been issued by 15 June 2016. Those costs were not then owing. A charge intended to cover them would have needed to refer expressly to costs becoming due upon final assessment.
5. The first two grounds therefore failed. The amendment did no more than bring the charge up to date, and any objection that it failed to reflect the court’s intention had to be made by appeal. The renewed challenge to dismissal of the Part 8 claim was hopeless: the District Judge had case-management jurisdiction to dismiss a claim the claimant no longer pursued, and dismissal did not prevent a separate claim for recovery of any alleged overpayment.

• High Court (Chancery Division) [2018] EWHC 1277 (Ch): appeal dismissed.
• Central London County Court: District Judge Fine refused to vary or discharge the amended final charging order, discharged the charge after payment, and dismissed the related Part 8 claim.