Lufthansa Technik AG v Astronics Advanced Electronic Systems & Anor

The slip rule corrects an accidental slip or omission so that an order reflects the court’s intention. It cannot be used to permit second or additional thoughts. The court must compare the order with the judgment or reasons identifying the relevant intention.

Under CPR 3.1(7), variation of an order remains subject to finality, the avoidance of two bites of the cherry and the proper limits of appellate review. Relevant grounds may include a material change of circumstances, an innocent or deliberate misstatement of facts, or a manifest mistake in formulating the order. Where the judgment and order accurately correspond, neither jurisdiction permits substantive reconsideration.

Lufthansa applied to amend an order made in August 2020 following a patent infringement trial. The order recorded that certain adjourned issues no longer needed to be determined and granted liberty to apply for further directions on the inquiry or account.

A later judgment by Campbell KC, [2023] EWHC 1136 (Pat), held that the order prevented Lufthansa from advancing three of those adjourned issues at the quantum stage. Lufthansa therefore sought permission to appeal out of time and applied to vary the order under CPR 40.12 or CPR 3.1(7), contending that the order failed to reflect the intended position.

The central issue was whether the order contained an accidental slip, omission or other qualifying mistake permitting correction or variation.

1. Application dismissed. The application did not fall within CPR 40.12 or CPR 3.1(7).
2. Under CPR 40.12, the court may correct an accidental slip or omission, but cannot use the jurisdiction to entertain second or additional thoughts. The relevant comparison was between the judgment of 21 August 2020 and the order made to give effect to it. The order accurately reflected the judge’s intention.
3. The judge had intended the adjourned issues no longer to require determination. The claimant’s evidence and submissions had conveyed that position, and the judgment expressly rejected the defendants’ contention that the issues remained alive. The later consequences identified by Campbell KC did not establish any discrepancy between the judgment and order.
4. CPR 3.1(7) permits variation or revocation of an order, subject to the principles identified in Tibbles v SIG plc. Those principles include finality, avoiding two bites of the cherry and preserving the proper function of an appeal. The recognised grounds include a material change of circumstances, a material misstatement of the facts on which the order was based, and a manifest mistake in formulating the order.
5. The judge assumed, in the claimant’s favour, that the relevant order was interim. Even on that assumption, there was no material change, misstatement or manifest mistake. The application sought to alter the substantive effect of a deliberate order, rather than correct an accidental error. Questions concerning appealability, delay and prejudice were matters for the Court of Appeal or unnecessary to determine.

The judgment describes earlier procedural steps in the same litigation. The patent infringement trial judgment was delivered on 22 July 2020, followed by a reasoned judgment on the form of order on 21 August 2020. Campbell KC later gave judgment on the effect of that order in [2023] EWHC 1136 (Pat). The present application to vary the August 2020 order was dismissed.