THE “SLIP RULE” CONSIDERED IN DETAIL: ALSO THE COURT’S INHERENT POWERS TO VARY ITS ORDERS (APPLICANT UNSUCCESSFUL ON BOTH COUNTS…)

October 31, 2023 · by · in Applications, Civil Procedure, Uncategorized

The “slip rule” in civil procedure is often mentioned, but rarely considered at length. There is a detailed consideration of the rule and relevant authorities in the judgment of Mr Justice Henshaw in Deutsche Bank AG v Sebastian Holdings Inc [2023] EWHC 2563 (Comm).  The judge refused the claimant’s application to vary the wording of a suspended committal order.  The claimant’s application that the court exercise its inherent jurisdiction to amend the order was also refused.

“Those cases establish that the slip rule cannot enable a court to have second or additional thoughts. Once the order is drawn up any mistakes must be corrected by an appellate court. However it is possible under the slip rule to amend an order to give effect to the intention of the Court.”

 

THE CASE

The applicants had obtained a suspended committal order against one of the defendants.  The order provided that the defendant (Mr Vik) attend for examination in relation to the assets of the defendant company.   When the hearing started Mr Vik argued that the terms of the committal order meant that he did not have to attend.

The applicants then made an application under the “slip rule” and alternatively under the court’s inherent jurisdiction to vary the wording of the committal order to ensure that Mr Vik would attend.

THE PROPOSED RE-WORDING OF THE ORDER

The applicant’s proposal amendment would have ensured that Mr Vik remained compelled to attend.

67, …his approach is reflected in the draft rectified version of § 2 for which DB contends in its alternative application under the slip rule which I consider later. That formulation is as follows, indicating changes from the existing order by underlining/strikethrough:
“2. The committal of Mr Vik to prison under paragraph 1 above shall be suspended (and the warrant of committal remain in the Court Office at the Royal Courts of Justice) until whichever is the later of (i) a period of the date six months from the latest date by which any notice of appeal from this Order must be filed,; or (ii) in the event of such notice of appeal being so filed, the date six months from the final determination of any appeal from this Order,; or (iii) the date on which the further examination of Mr Vik directed pursuant to paragraphs 1 and 2 of Schedule B to this Order finally concludes (the “Relevant Date”) and the warrant of committal remain in the Court Office at the Royal Courts of Justice, on the condition that Mr Vik complies with the terms set out in Schedule B to this Order,. after which paragraph Paragraph 1 of this Order and the Warrant of Committal shall be automatically discharged after the Relevant Date unless prior to that date an application has been made by DBAG to lift said suspension.”

THE SLIP RULE CONSIDERED

The judge considered, in detail, the authorities relating to the slip rule.  He held that the application to amend went beyond the ambit of the rule.

(D) APPLICATION UNDER THE SLIP RULE
(1) Principles
    1. DB applies, in the alternative, for rectification of § 2 of the Suspended Committal Order so as to read in the manner quoted in § 67 above. DB submits that this can be done pursuant to the ‘slip’ rule in CPR 40.12:

“40.12— Correction of errors in judgments and orders

(1) The court may at any time correct an accidental slip or omission in a judgment or order.

(2) A party may apply for a correction without notice.”

    1. PD40B § 4.5 states:

“The court has an inherent power to vary its own orders to make the meaning and intention of the court clear.”

    1. In Bristol-Myers Squibb Co v Baker Norton Pharmaceuticals Inc (No 2) [2001] EWCA Civ 414, [2001] RPC 45, a trial judge had ordered the claimant to pay two defendants’ costs up to a certain date but thereafter only one set of costs. The Court of Appeal allowed an appeal from that decision. It set aside the judge’s costs order and provided that both defendants should recover their costs of the trial. That order had the unintended effect that interest on the costs ran from the date of the Court of Appeals’ order, so that the claimant lost interest which had accrued pursuant to the judge’s order up to the date of the Court of Appeal’s order. The Court of Appeal subsequently exercised its power under CPR 40.12 in order to correct matters.
    1. The Court of Appeal referred to previous decisions in which the Court of Appeal had found the slip rule to be inapplicable. These included Bentley v O’Sullivan [1925] WN 95, where an order had been made that the plaintiff should recover his costs to be taxed if not agreed. On taxation the plaintiff sought to recover costs on the High Court scale in the absence of a certificate to that effect. The matter was referred to the special referee, who agreed to amend his report by inserting after the words “costs to be taxed” the words “on the High Court scale“. The Court of Appeal held that he was not entitled to make that amendment. Aldous LJ, giving the lead judgment in Bristol-Myers, said he suspected that was a case of “second thoughts” about an order (§ 19).
    1. Similarly, in Hulbert v Thurston [1931] WN 171, an infant plaintiff brought a personal injury claim, winning at first instance but losing on appeal. The appeal court made a costs order against the infant but not the infant’s next friend. Scrutton LJ refused an application to amend the order:

“In his opinion the addition now asked for was not one that could be made under the slip rule. That rule was intended for the correction of an order which, as drawn up, did not express that which was decided by the Court. It was quite possible that an order in the terms now asked for might have been made if an application had been made at the time, but no such application was made.”

Aldous LJ referred to this too as “an attempt to amend an order after second thoughts” (Bristol-Myers § 20).
    1. By contrast, in Adam & Harvey Ltd v International Maritime Supplies Co. Ltd [1967] 1 WLR 445 the Court of Appeal allowed an appeal (granting unconditional leave to defend). During the course of the argument as to costs, the court indicated that there was to be no immediate taxation. However the order as drafted simply provided for the costs to be paid. The Court of Appeal amended the order pursuant to the slip rule. Harman LJ said:

“As far as I am concerned, as I say, I did not intend … that there should be this exceptional order for payment of costs at once, but that costs should be in any event those of the successful appellant. That was the order I intended to pronounce and I thought I had done so. But I see there is some room for mistake owing to the fact that after I had made the observation which showed I did not intend an immediate taxation, an application was made which could have had that result and was so interpreted by the associate. I think that is a slip and I think it is a slip which can be amended under RSC Ord. 20, r. 11, because inadvertently the order as drawn did not express the intention of the court owing to a misunderstanding between the associate and the court which pronounced it ….”

(quoted in Bristol-Myers § 21)

    1. In Mutual Shipping Corporation v Bayshore Shipping Co. [1985] 1 Lloyd’s LR 189, the Court of Appeal corrected, under the applicable rule, an arbitral award which transposed the names of the parties. Sir John Donaldson M.R. said at page 193:

“The High Court Slip Rule (RSC 0.20.r.11) which is similarly worded, was considered only recently by this Court in R v. Cripps ex parte Muldoon [1984] 1 QB 686. We there pointed out the width of the power, but also drew attention to the fact that it does not enable the Court to have second thoughts (p.697).

It is the distinction between having second thoughts or intentions and correcting an award or judgment to give true effect to first thoughts or intentions, which creates the problem. Neither an arbitrator nor a judge can make any claim to infallibility. If he assesses the evidence wrongly or misconstrues or misappreciates the law, the resulting award or judgment will be erroneous, but it cannot be corrected either under s. 17 or under o. 20, r. 11. It cannot normally even be corrected under section 22. The remedy is to appeal, if a right of appeal exists. The skilled arbitrator or Judge may be tempted to describe this as an accidental slip, but this is a natural form of self-exculpation. It is not an accidental slip. It is an intended decision which the arbitrator or Judge later accepts as having been erroneous.”

Robert Goff LJ having considered the authorities said this at page 195:

“In none of the last five cases I have cited did the judgment or order as drawn fail to give effect to the intention of the Court at the time when it was drawn. In each case there was, however, an error in the judgment or order arising from an accidental slip or omission — by a party, or by his Counsel, or by his solicitor. Furthermore, there is authority that if a Court makes an order in certain words which do not have the effect which the Court intended them to have, that order may be corrected under the slip rule to make it accord with the Court’s actual intention: see Adam & Harvey Ltd v International Maritime Supplies Co-ordination drawings Ltd [1967] 1 WLR 445 .”

and:

“I do not think it would be right for me to attempt in this judgment to define what is meant by “accidental slip or omission”: the animal is I suspect, usually recognizable when it appears on the scene.”

(quoted in Bristol-Myers §§ 22-24)

    1. Having cited those cases, Aldous LJ in Bristol-Myers continued:

“25 Those cases establish that the slip rule cannot enable a court to have second or additional thoughts. Once the order is drawn up any mistakes must be corrected by an appellate court. However it is possible under the slip rule to amend an order to give effect to the intention of the Court. …

26 In the present case the only issue raised on the cross-appeal was whether the restriction placed by the judge was appropriate. At no time was that part of the judge’s order that required Bristol Myers to pay the defendants’ costs challenged and it was not the intention of this Court to alter that part of the order. The intention of this Court was to remove the restriction; not to alter the general right to costs that had been ordered. Thus the correct order allowing the cross-appeal should have left the part of the order of the judge which was not challenged in the form in which it existed.

27 I reject Mr Turner’s submission that the mistake was as to the legal effect of the order. The legal effect was not in issue. In my view the terms of the order did not meet the intention of the Court contained in the judgments and that had an unexpected legal effect. The order setting aside the whole of the judge’s order on costs was an accidental slip which can and should be corrected under r.40.12. The intention of the Court was to vary the judge’s order so as to remove the restriction.”

    1. In Foenander v Foenander [2004] EWCA Civ 1675, the President of the Family Division made a civil restraint order that inter alia forbade the applicant from “making any further application or issuing any new proceedings if those proceedings relate to the former marriage” of the applicant. The Court of Appeal upheld a subsequent decision by Coleridge J to amend that order under the slip rule, to make clear that it covered the pursuit of any outstanding applications, even if they had already been commenced. Wall LJ said:

“In my judgment, the phrase in the President’s order, “making any further application” taken without reference to her judgment is ambiguous. It could mean (1) making a fresh application — for example a further, but new application to set aside the order of 12 December 1994; or (2) making a further application to the court in an outstanding application already before the court. Coleridge J’s order clears up that ambiguity. He thought “further application” meant any application, as the President’s judgment makes clear. In my judgment, that is the correct view. …” (§ 56)

citing Bristol-Myers for the proposition that:

“Although it is of course the case that the “slip rule” is primarily designed to correct typographical or grammatical errors, it is permissible to use it to use it to amend a court order to give effect to the intention of the court …” (§ 57)

    1. In Leo Pharma v Sandoz [2010] EWHC 1911 (Pat), the court held a patent to have been infringed, and made an order providing for disclosure and for the claimant then to elect whether to pursue an account of profits or a damages claim. Paragraph 9 of the order provided for the defendant to pay to the claimant any sums found due on the taking of said inquiry into damages or account of profits “together with interest at the judgment rate (being 8%) from the date of this Order“. The defendant applied for the order to be corrected under CPR 40.12 on the basis that there had been no discussion at the hearing about interest (save that the defendant had submitted that any such question should be reserved). After the hearing, the parties had disagreed about aspects of the minute of order, but at a certain stage counsel for the defendant had indicated that the defendant was prepared to agree the claimant’s proposed form of order, which was signed and in due course sealed by the court. On the CPR 40.12 application, the defendant contended that counsel had not discussed the point about interest, and the defendant’s counsel indicated that he had never intended to agree to judgment rate interest.
    1. Floyd J rejected the application. He noted that in Bristol-Myers, an order that had been in agreed form was correctable because, when the court made the order, it did not intend to deprive the defendants there of accrued interest, yet, inconsistently, the written order had that effect. By contrast, Floyd J noted, in SmithKline Beecham v Apotex Europe Limited [2005] EWHC 1655 Lewison J had refused to allow the slip rule to be used to expand a cross-undertaking given in an order to cover third parties affected by an injunction. It was contended that the court must have intended to make an order following the precedent injunction in the Practice Direction supplementing CPR Part 25. Lewison J said:

“The slip rule allows the court to correct an “accidental” error or omission. Was the form of the cross-undertaking an accidental error? At first blush the answer must be “No”. It was a cross-undertaking deliberately given in the form in which it was intended to be given. It was embodied in an order settled by junior counsel for each party; and approved by the judge.” (§ 63)

Floyd J noted that one ground on which Lewison J refused to correct the order was that it was not clear what order would have been made if the alleged “accidental slip” had not occurred (Leo Pharma § 16).
    1. As to the case before him, Floyd J stated:

“17. It is important to note that it is not every failure of an order to give effect to the intention of the court which can be corrected under the rule. The operation of the rule is limited to accidental slips or omissions. It is common for the court to encourage parties to agree matters of detail in the drawing up of its order with the proviso that the parties may mention the matter again to the court in the event of disagreement. Whilst in such circumstances it could be said that the court had no specific intention at the time it spoke its order, a subsequent agreement as to the form of order would plainly be within the intention of the court, and such an agreement could not, as it appears to me, be corrected under the slip rule. There is neither a failure to reflect the intention of the court, nor any accident or slip. Another quite common case is where the parties agree to a minute of order which is inconsistent with an order spoken by the judge: for example a longer period of time than the judge allowed for some act to be performed. A party who had agreed such a variation cannot seek to revert to the original time on the basis that it had not been the intention of the court to extend the time. There is no accidental slip or omission in the order.

18. Counsel for Sandoz suggested that the answer to this is that matters of detail such as this could be worked out between the parties, but that it was not open to the parties to include a new matter of substance which is not part of the intention of the court. I reject that submission. Matters deliberately included by the parties in an order drawn up and sealed by the court do not constitute accidental slips or omissions within the rule. It is different where, as in Bristol Myers , the order had an unexpected and unintended effect inconsistent with the court’s intention.

…

21. Neither side accordingly suggests that the court had a definite intention at the hearing to make an order about the precise rate or period of interest. The stay of the financial remedies was dealt with globally, and without the dispute about the rate and period of interest being brought to my attention as requiring resolution.

22. Putting aside for the moment what is said to be the mistake in agreeing to the order, I do not think that the order as made is inconsistent with the intention of the court at any stage. Firstly, when the order was spoken, the precise form of order about interest was one of the matters to be settled between counsel, and was, at least on the face of it, so settled. The case is therefore not within the principle enunciated in Bristol Myers where the order had an unintended effect inconsistent with the court’s intention. Secondly, there would on this scenario be no accidental slip.”

    1. Leo Pharma was distinguished in Fiona Trust & Holding Corporation v Privalov [2015] EWHC 527 (Comm), which is an example of the exercise of the court’s inherent power, referred to in PD 40B § 4.5, to vary its own orders to make the meaning and intention of the court clear. The facts were somewhat complex. Simplifying as much as possible, charterers had initiated arbitration proceedings to determine whether owners had validly rescinded certain charterparties. Owners sought to pursue monetary claims against charterers if owners succeeded in the arbitrations. They brought proceedings for that purpose, which were stayed pending the outcome of the arbitrations. Owners also sued two of their former officers, alleging that they had dishonestly entered into certain schemes. Those proceedings led in due course to a judgment which concluded, inter alia, that the claims against “the other defendants [including the charterers] are to be dismissed in so far as they are based upon these schemes“. The judge asked for counsel’s assistance in drafting an order to give effect to its judgment. The order was perfected in December 2010. Paragraph 6 provided “The claims against [inter alios, the charterers] are dismissed in so far as they are based on the following alleged schemes…the Sovcomflot time charters scheme …”. Later, an issue arose about whether that order determined the consequential monetary claims. Various types of relief were sought, including under the slip rule and the inherent power.
    1. As to the slip rule, Andrew Smith J concluded that although § 6 of the order had been included by agreement, the case did not fall within the principle in Leo Pharma. The court had not asked the parties to draw up an agreement including what they saw fit in the light of the judgment; it had asked counsel to help draw up an order to give effect to the judgment:

“33. The position in this case is different from that discussed by Floyd J. The slip rule is used to deal with errors and omissions that result from “accidents” on the court’s own part as well as those of the parties. In the example given by Floyd J of the parties agreeing a longer time than the judge had allowed, such an agreement is so common that it would be implicit in the judge’s order that he was content for the parties to agree adjustments of this kind: it was “within the intention of the court”, even though the court had “no specific intention at the time it spoke its order”. There would therefore be no accident on the part of the judge in endorsing the parties’ agreement. But here my judgment did not invite the parties to agree what they saw fit in light of it, but asked for the assistance of counsel to draft an order to give effect to the judgment. I did not give the parties licence to agree that the court should make an order that did not do so. It is commonplace for a judge to seek such assistance of counsel. For my part, I do not think that counsel are then always acting as agents for the parties: for example, on occasions counsel might assist even though the client has withdrawn instructions. I acknowledge that in this case Mr Dunning referred to discussions between the parties, but I do not think that much can be read into that. In any case, I endorsed the relevant part of the order on the basis that it gave effect to my judgment, and I cannot accept that, if through the parties’ agreement it did not do so, therefore there was no “accidental slip or omission” within the meaning of CPR 40.12 .

34. However, I am not satisfied that there was any relevant slip or omission for another reason. My intention was to dismiss all the claims in the four actions before me that had not been stayed except only in so far as I made an order for relief on them. As I see it, my order did give effect to that intention.

35. My order did not, however, deal specifically with the possibility, which had not occurred to me, that the parties believed that the monetary relief claims were not stayed and that there were therefore claims in the proceedings that had not been advanced during the trial. If I had appreciated that the parties believed this, I would, I think, have included some words in my order to the effect that, if and in so far as they were not covered by the stay, they were dismissed. I am not persuaded that the slip rule in CPR 40.12 is designed to cover this situation, or that it should [be] so used. But should I spell this out using the inherent power referred to in CPR 40 BPD4.5 (and of which the slip rule may [be] seen simply as a specific aspect: Zuckerman on Civil Procedure (3rd ed, 2013) para 23.34)? …

36. Nevertheless, I have concluded that it would be proper to use the inherent jurisdiction to clarify the position about the consequential monetary relief claims. As I see it, the purpose and effect of doing so is … to prevent the litigation, and in particular the order of 10 December 2010, hampering the arbitral process because it gives room for the parties to dispute the meaning effect of paragraph 6.”

    1. Fiona Trust was accordingly an example of the court exercising its inherent power to vary an order, not in order to correct a slip, but simply to spell out more clearly that which the court considered that it had in fact already ordered.
(2) Application
    1. As a preliminary point, Mr Vik submits that Leo Pharma shows that the slip rule is not available where an order has been drawn up by the parties and approved by the judge. I would not accept that submission. The discussion in Fiona Trust indicates that the slip rule can nonetheless be used in appropriate cases, including where the court has asked the parties to draw up an order reflecting its intention but the order as drawn up accidentally fails to do so.
    1. DB submits that it is plain from the Sentencing Judgment that Moulder J intended the suspension of Mr Vik’s committal to prison to be contingent on his compliance with the Schedule B Conditions. If the position were otherwise, the carefully structured timetable for Mr Vik to comply first with the disclosure condition, then the witness statement condition, and finally to attend the Further Examination, would have served no purpose. Moreover, the clear coercive purpose of the judge’s order, designed to secure Mr Vik’s compliance with the conditions, would be defeated. Moulder J’s intention was that the suspension would afford Mr Vik the opportunity to purge his contempt by, inter alia, attending the Further Examination and giving truthful answers. She did not intend Mr Vik simply to be able to escape from both the Schedule B conditions and the custodial sentence merely by lapse of time. Like Bristol-Myers, this is a case where the written order needs to be corrected in order to give effect to the intention of the court and to correct an unexpected legal effect.
    1. Approaching the matter at a fairly high level of generality, I can see the force of the point that Moulder J’s Sentencing Judgment contemplated that Mr Vik would have the opportunity to avoid custody if, but only if, he complied with all of the Schedule B conditions, which included attending the Further Examination and giving accurate answers to the questions asked there. I could also accept, at least with the benefit of hindsight, that in view of the court’s usual lead times (which are routinely published), there was always going to be a possibility that the Further Examination – unless given particular expedition – would be listed for a date more than 6 months from the conclusion of the appeal. Had this prospect been focused on during the hearing before Moulder J, it is certainly possible that she would have made a different form of order.
    1. Nonetheless, I do not consider that Moulder J’s order can be corrected under the slip rule. Regrettably, the present case in my view instead falls into the ‘second thoughts’ category.
    1. Moulder J no doubt intended that Mr Vik should avoid custody if, but only if, he complied with all of the Schedule B conditions, including attending the Further Examination and giving accurate answers to the questions asked there. However, Moulder J must also be taken to have intended to set the suspension period at 6 months, in accordance with the application before her (see § 2 of the Sentencing Judgment, quoted in § 25 above). There is no evidence that the court considered, or the parties suggested, that the 6-month period might be too short to accommodate all three of the Schedule B conditions, including the Further Examination. Indeed, in the context of its alternative application to vary (considered later), DB submits that “[a]t the time the Committal Order was made, the Court and the parties assumed that the Court would have availability to accommodate a listing of the Further Examination within six months from the date on which Mr Vik’s appeal was dismissed”; and that seems consistent with the reference in § 2 of the parties’ post-hearing letter to the judge (with which DB concurred) to “a period of suspension ending 6 months …” and the wish to “specify times within that period for Mr Vik to produce documents and a witness statement and to submit for further XX” (see § 30 above, my emphasis added). Nor was it self-evident that that approach was patently unrealistic. It may well be the case that, at any given time, the court’s ordinary lead times would indicate a listing for a 1-day or 2-day hearing (it is not clear what time estimate the court or parties had in mind for the Further Examination at the time of the Suspended Committal Order) hearing more than 6 months from the date of the listing appointment. However, the court might reasonably have anticipated that this matter, involving a time-limited suspended committal order, would merit expedition.
    1. Had any such potential problem been raised and considered, then there are a number of ways in which Moulder J might have approached it. For example,
i) Moulder J might have taken the view that the sentence should not remain extant for longer than 6 months, so the Further Examination would have to be listed within that period, giving the matter whatever degree of expedition was appropriate from a listing perspective in order to achieve that;
ii) The judge might have selected a suspension period longer than 6 months;
iii) The judge might, alternatively, have considered that the Further Examination could be listed for any date after the expiry of the 6-month period, with the sentence remaining extant but suspended meanwhile;
iv) The judge might have taken the view indicated in (ii) above, but only on the basis that the Further Examination was listed within a finite period (e.g. 3 months) after the expiry of the 6-month period;
v) The judge might have taken the view indicated in (ii) above, but only on the basis that that all possible efforts were made to list the Further Examination promptly (that being a formulation adopted by DB, in oral reply submissions, as an approach the judge would likely have taken);
vi) On either of alternatives (iii), (iv) and (v) above, the judge might have ordered that the sentence would remain extant but suspended up to and including the date of the Further Examination itself (as DB’s draft rectified order envisages), or until a date some weeks/months after that, (in order to allow DB whether, in the light of the course of the Further Examination, to issue an application to lift the suspension, and to prepare the application). Thus, for example, § 3 of DB’s draft order (reflecting § 5 of its application notice), sought pursuant to DB’s variation application, would provide that:

“The suspension pursuant to paragraph 2 of the Committal Order of the committal of Mr Vik to prison under paragraph 1 of the Committal Order shall be continued (subject to Mr Vik’s compliance with the same terms) so as to end on the date 3 months after the date on which the Further Examination (including, for the avoidance of doubt, any adjourned hearing of the Further Examination) finally concludes.”

DB submits that that would reflect “Moulder J’s intention in setting up the carefully engineered regime to encourage and coerce Mr Vik into complying with the Part 71 Order and affording DBAG an opportunity to consider Mr Vik’s attempts to comply and decide whether to seek to activate the sentence“.

    1. Any of alternatives (ii) to (vi) above would in fact have meant that the sentence was suspended not for 6 months but for a longer period. Alternative (iii) (which reflects DB’s draft rectified order) and alternative (v) (which reflects the point DB made in oral reply submissions) would both have meant the sentence remained suspended for a period that could not be determined until the Further Examination were listed. Alternative (v) would also make it impossible for Mr Vik, DB, the Tipstaff or anyone else to know for sure whether or not the sentence had expired, or when, because it would depend on whether the Further Examination had been listed using all possible expedition. Alternatives (ii) and (iv), on the other hand, would require the court now to conclude that Moulder J must have intended some particular time period over and above the 6-month period, despite there being no basis on which to conclude that she had any such period in mind.
    1. I cannot be confident that Moulder J would necessarily have taken any of approaches (ii) to (vi) above, had she considered the matter, or, if so, which one. The present case is some distance away from cases like Bristol-Myers, Adam & Harvey Ltd, and Foenander where it could realistically be said that the court had, or lacked, a reasonably specific intention as the order it was making: respectively, not to disturb the accrued interest entitlement, not to order immediate taxation of costs, and to prevent the pursuit in future of any relevant application. Here, it can be said, at a general level, that Moulder J did not intend Mr Vik to avoid custody if he failed to comply with the conditions. However, in circumstances where the application and order also provided for there to be some kind of 6-month suspension period, any application of the slip rule would require the court now to decide how Moulder J intended that period to interact with the higher level intention expressed in my previous sentence. That question cannot be answered, in the context of the slip rule, simply by asking how the court would approach the matter now.
    1. Moreover, I am not convinced that this is a case of an order having an unexpected legal effect, in the relevant sense. In Bristol-Myers, for example, although the problem became apparent only later, it is a feature from the outset of the order as made that it did not give effect to the court’s intention. In the present case, I do not consider that the same can be said. The order as made on its face gave effect to the court’s intention, and was capable of being implemented accordingly. On reflection, it would have been better if the order had provided for a suspension period that was longer, to avoid the risk of needing an expedited listing of the Further Examination. However, that appears to me to fall into the ‘second thoughts’ category of cases, rather than being a case of the correct expression of ‘first thoughts’ where the slip rule can be applied.

CORRECTION OR VARIATION OF THE ORDER UNDER CPR OR INHERENT POWERS

The judge also refused the applicant’s request that the order be varied under the court’s inherent powers.

    1. In the further alternative, DB asks the court to vary Moulder J’s order, pursuant to CPR 3.1(7), so that § 2 reads in the way quoted in § 67 above, and, further, by extending the suspension (and the period within which DB has to make any application to lift it) by three months beyond the date of the Further Examination.
    1. DB submits that:
i) the court has a discretion to vary its orders, to be exercised in all the circumstances, whether to vary an order. The discretion is primarily exercised where (a) there has been a material change of circumstances since an order was made or (b) the facts on which the original decision was made were (innocently or otherwise) misstated: Tibbles v SIG Plc [2012] 1 WLR 2591 §§ 39-42. The Court of Appeal in Tibbles added that “it ought normally to take something out of the ordinary to lead to variation or revocation of an order, especially in the absence of a change of circumstances in an interlocutory context” (§ 39(vii)). There may be room of for prompt recourse to a court to deal with a matter that in genuine error was overlooked by the parties and the court, and “[o]n that basis, the power within the rule would not be involved in order to give a party a second bite of the cherry, or to avoid the need for an appeal, but to deal with something which, once the question is raised, is more or less obvious, on the materials already before the court” (§ 41); and
ii) the present case meets the requirement for a material change of circumstances. At the time the Suspended Committal Order was made, the court and the parties assumed that the court would have availability to accommodate a listing of the Further Examination within 6 months from the date on which Mr Vik’s appeal was dismissed. Some 9 months after the Suspended Committal Order was made, the factual position was quite different to that assumption, not least as the 6-month period stretched into the summer vacation. That is a sufficient basis for the court now to vary § 2 of Moulder J’s order. There would be no prejudice to Mr Vik, who until very recently was content to proceed on the basis that he was subject to an obligation under the Suspended Committal Order to attend a Further Examination in September 2023.
    1. Mr Vik submits that:
i) When a sentence is varied (which may be done either by the court of its own motion or on an application by the contemnor to purge), the original sentence cannot be varied by way of increase; only variation by amelioration of the sentence is possible: Harris v Harris [2001] EWCA Civ 1645 § 19. In determining whether a variation would be permissible as an amelioration, this “should be self-evident and almost irrefutable” (Harris § 22). The variation sought by DB would self-evidently be an increase in Mr Vik’s sentence and therefore cannot be granted.
ii) In any case, it seems highly doubtful whether CPR 3.1(7) applies to give any power to vary the Suspended Committal Order. In accordance with its words, the rule gives the court power to amend only orders made in exercise of a power given by the CPR: see Deg-Deutsche Investitions-und Entwicklungsgesellschaft mbH v Koshy (No.2) [2004] EWHC 2896 (Ch) §§ 10 and 17-21; White Book 2023 note 3.1.17.4. Given that the power to commit a contemnor (and to suspend an order for committal) is part of the court’s inherent jurisdiction (Lee v Walker [1985] 1 QB 1191H-1192C; Deutsche Bank AG v Sebastian Holdings Inc (Nos 1 and 2) [2018] EWCA Civ 2011 § 35) rather than a power given by the CPR, CPR 3.1(7) does not confer jurisdiction to depart from the usual rule that a court of first instance has no power to review, revoke or vary an order made by another first instance court.
iii) DB’s further application for continuation of the suspension so as to end 3 months after the Further Examination must fail for the same reasons as given: (a) there appears to be no jurisdiction for the court to vary a sentence on the application of a party other than the contemnor; and (b) any variation must reduce the sentence – the court cannot increase it.
    1. As to the first of these points, in Harris the applicant had been sentenced on 23 March 2001 to a total of ten months’ imprisonment for repeated breaches of injunctions granted in order to protect his former wife or his children. He could thus ordinarily expect to be released at the half-way point, around 23 August 2001. The applicant made two unsuccessful applications to purge his contempt. He made a third application on 14 June 2001, seeking in the alternative an order for release on terms that the remaining part of the sentence be suspended. Munby J ordered that, the applicant having conditionally purged his contempt, he be released forthwith from prison on terms that the execution of the remaining part of his sentence be suspended for nine months until 14 March 2002, when the release order and the committal order would cease to have effect, on condition that until 14 March 2002 the applicant complied with the terms of the injunction.
    1. On appeal, the applicant contended inter alia that (a) a contemnor applying to purge his contempt faced only three possible outcomes: (i) immediate release, (ii) deferred release at a stated future date, or (iii) the refusal of his application: the court has no power to vary the original sentence save in one of those ways, and no power to impose a fresh sentence; and (b) even if the court had any such power, it did not permit the suspension of the sentence beyond the period that the contemnor would actually have spent in prison had he served his sentence, alternatively, beyond the length of the original sentence as formally declared.
    1. Thorpe LJ (with whom the other members of the Court of Appeal agreed) stated that the appeal raised the question: “can a court releasing a contemnor on his application to purge his contempt impose a suspended sentence in respect of the unserved balance of the prison sentence and, if yes, for what period can the court order the suspension to run?” (§ 6). He stated that the sentence first imposed is mutable, either by the judge of his own motion or a as a consequence of an application by the contemnor to purge:
“… However no one is liable to be sentenced twice for the same contempt nor can the original sentence be varied by way of increase. Much of the argument before us has turned upon whether the judge’s order of 14 June constituted a variation of an existing sentence or the imposition of a fresh sentence and whether, if a variation, it was a variation by way of amelioration. …”
    1. The Court of Appeal concluded that the judge lacked jurisdiction to make the order he did, “for two principal reasons” (§ 20). The first reason was that, in the interests of clarity and certainty, a sentence could not be partly immediate and partly suspended (§ 21). Secondly:-
“22. .. it cannot in my opinion be said with any certainty that the order represents a variation of the original sentence rather the imposition of a fresh penalty. Certainly RSC Ord 52 as presently framed suggest to me that the only power to suspend is the power to suspend the execution of the first order of imprisonment. The court’s choice is only between warrant to be immediately executed or a warrant to be suspended. That choice is made at the sentencing hearing and does not recur. Furthermore even if the order of 14 June could be accepted as a variation of the order of 23 March I am by no means clear that it is a variation by way of amelioration. Whilst on the one hand I recognise the argument that a reduction of two months and eight days on a sentence of five months must be counted a significant amelioration (and Mr Harris must so have regarded it since that was what he sought in the alternative) a balance still has to be struck between the element of amelioration and the price paid by imposition of the Damoclean sword throughout a period of future liberty. The principle that variation must be by way of amelioration is important and in my judgment amelioration should be self-evident and almost irrefutable. Of course it would be possible to contrast extremes such as an immediate release ordered early into a long sentence balanced by a suspended sentence of brief duration for a limited period and an immediate release well into the original sentence balanced by a suspension for an indefinite period. Although Mr Harris in this case was not in doubt as to his preference it is easy to postulate the hypothetical contemnor who would prefer to serve his term in order to achieve unconditional liberty.” (§ 22, my emphasis)
    1. Accordingly, one reason why the immediate custodial sentence in Harris could not be varied so as to produce a partly suspended sentence lasting longer than the original sentence was that that would not self-evidently have ameliorated the sentence. A fortiori in the present case, the variation of a sentence suspended for 6 months from the date of final disposition of Mr Vik’s appeal, so as to result in a sentence suspended for a longer period, would not self-evidently ameliorate the original sentence.
    1. DB submits that the amelioration principle is not an absolute one, and can be overridden by reference to the court’s and the parties’ intention. Further, the original sentence in Harris had been the intended sentence, whereas in the present case the proposed variation would achieve what the court and the parties intended. I do not accept those submissions. The decision in Harris does not in my view allow room for the suggestion that the amelioration principle can be overridden. Further, in applying that principle the court must surely compare the proposed varied order to the original order as made, rather than to some broader idea of what was intended. On the footing that DB has not succeeded in its arguments on construction or the slip rule, § 2 of Moulder J’s order has the effect that the sentence imposed on Mr Vik was discharged on 24 August 2023. The variation DB proposes would reinstate it.
    1. The point could perhaps be made that DB’s proposed variation would ameliorate Mr Vik’s sentence in the sense that it would give him further time to purge his contempt and comply with the Schedule B conditions, by attending a Further Examination and giving accurate information. However, on the basis that the custodial sentence has been discharged, there is no real benefit to Mr Vik in reinstating it. It would simply expose him anew to the risk of being imprisoned. Should he of his volition wish to attend a Further Examination, in order to purge his contempt, he would be free to do so even without being subject to the threat of imprisonment.
    1. DB cites the decision of Carnwath J in Secretary of State for Defence v Percy [1999] 1 All ER 732 for the proposition that the court does have the power to extend a term of suspension. However, that decision pre-dates Harris and contains no consideration of the court’s jurisdiction to make such an order. In addition, the circumstances were somewhat unusual. The defendant in April 1997 breached an injunction restraining her from entering certain military premises, and in June 1997 was sentenced to 6 months’ imprisonment suspended for 12 months. In October 1997 a final injunction was granted against the defendant. The defendant then proceeded to gain access to the premises on nine further occasions. The motions before Carnwath J were to commit the defendant for breach of the October 1997 injunction, and the same incidents were also relied on as breaches of the conditions of the suspended sentence (p734c). The core of the judge’s reasoning was this:
“It follows that Ms Percy had no legal justification for going on to the ministry’s land to remove the notices and she was, therefore, in breach of the injunctions against her. It follows also that she is in breach of the terms on which Lloyds J’s sentence was suspended. I have therefore to consider both whether it is appropriate to activate that sentence, and what, if any, further punishment should be imposed in respect of the present breaches.” (p.743g)
“[After referring to various extenuating circumstances] The position is therefore different from that which faced Lloyd J. In these circumstances, I do not think it would be just simply to activate the suspended sentence, or otherwise to impose an immediate custodial sentence. In view of Ms Percy’s limited means, I do not see any purpose in imposing a fine, although there will, no doubt, be an application for at least some part of the costs in respect of these proceedings. What I propose to do is to extend the period of the suspended sentence, so that the 12 months will run from the date of this judgment, and the suspended sentence will remain at six months.” (p.744d)
    1. Thus, the judge was in a position where he was entitled to impose a further, separate sentence of imprisonment for breach of the October 1997 injunction, as well as considering activating the suspended sentence. The situation was therefore somewhat different from a stark decision to prolong a suspended sentence. In any event, the decision would not entitle me to depart from the principle subsequently stated by the Court of Appeal in Harris.
    1. It follows that I accept Mr Vik’s first submission: I do not consider that I have power to vary the Suspended Committal Order in the way DB seeks. For the same reason, I cannot grant DB’s application to extend the suspended sentence so as to expire three months after the Further Examination.
  1. In those circumstances it is not strictly necessary to consider Mr Vik’s second point, regarding the scope of CPR 3.1(7). That rule provides that “[a] power of the court under these rules to make an order includes a power to vary or revoke the order”. On the basis of the authorities referred to in § ii) above, it is arguable that (i) CPR 3.1(7) does not provide a power to vary orders made under the court’s inherent jurisdiction as opposed to those made under the CPR, and (ii) whilst the CPR in part regulates the conduct of contempt proceedings (see, in particular CPR 81.9), civil contempt orders are made under the court’s inherent jurisdiction (see e.g. White Book note 81.9.5 citing Lee v Walker). Mr Vik accepted, though, that the court must have an inherent power to vary orders made under its inherent jurisdiction. The decisive considerations are therefore whether the court can or should vary the order in the circumstances of the case. Those circumstances are likely to include whether the order was an interim or a final one (cf the discussion in White Book note 3.1.17), and, most pertinently in the present case, whether the court has power to vary an order so as to prolong a suspended sentence of imprisonment. The latter point is in my view decisive here.
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