The High Court recently down Judgment in Deutsche Bank AG v Sebastian Holdings Inc [2023] EWHC 2563 (Comm) which considered, amongst other things, an application to amend an Order under the slip rule in CPR r.40.12.

The case concerned a Committal Order suspended for a period of six months, on terms that Mr Vik (who controlled the Defendant company) complied with conditions which included attending a Further Examination hearing. It later became apparent that the Further Examination hearing would not be listed within that six-month period, and an application was made to amend the Order, for it to continue until the Further Examination had been completed.

CPR r.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.

The Court considered what amounts to an accidental slip or omission, and what amounts to reconsideration that ought to be the subject of appeal.

The slip rule allows the Court to correct:

• An unintended effect – Bristol-Myers Squibb Co v Baker Norton Pharmaceuticals Inc (No 2) [2001] EWCA Civ 414
• A misinterpretation of the Judge’s Order by the associate drawing up the Order – Adam & Harvey Ltd v International Maritime Supplies Co. Ltd [1967] 1 WLR
• The transposition of the party names – Mutual Shipping Corporation v Bayshore Shipping Co. [1985] 1 Lloyd’s LR 189
• An ambiguity in the wording of the Order via clarification – Foenander v Foenander [2004] EWCA Civ 1675

The slip rule does not allow the Court to:

• Have second thoughts about an Order – Bentley v O’Sullivan [1925] WN 95
• Make an Order in terms that might have been made had they been requested – Hulbert v Thurston [1931] WN 171

The Court held that this case fell outside the slip rule, because there were a number of ways in which the Judge might have approached the issue had it been raised. It was distinguished from cases in which the slip rule had been found to apply, in that it could not “realistically be said that the Court had, or lacked, a reasonably specific intention as to the Order it was making.”

A key consideration was that the question of what Order the Court intended to make could not be determined with the benefit of hindsight – at the time of the hearing, it had neither been known nor considered that the Further Examination might not take place until after the six-month period of the suspension.

When making an application under the slip rule in CPR r.40.12, it is therefore important to remember that it can apply to a matter which was overlooked, only if (i) the issue was in fact before the Court and (ii) the Court had a clear intention.