A slip in time saves dimes: IC v RC  EWHC 2997 (Fam)
- The appellant husband (‘H’) sought to appeal orders made in respect of his liability to make periodical payments to the respondent, his former wife (‘W’). Gwynneth Knowles J heard the application for permission to appeal and the substantive appeal together.
- H (60) and W (58) married in 1985 and had three children who are now adults. In 2014 the parties separated after nearly 29 years of marriage.
- A consent order was approved in 2015. Paragraph 24 made provision for periodical payments to be made by H to W. In the order W was identified as the Applicant and H was identified as the Respondent. The order set down that those payments would cease on the first of the following events to occur:
- the death of either the Applicant or the Respondent;
- the Applicant’s remarriage; or
- further order.
- In October 2016 H applied to vary the order on the basis that he could no longer afford £2100 per month. W also applied for enforcement of the order. These two applications were consolidated and came before DJ Wright in April 2017. The judge made an order that periodical payments would be varied down to £600 per month for 7 months and thereafter to £800 per month.
- W’s counsel drafted the order following the April 2017 hearing and submitted it to the judge for approval. DJ Wright approved it by email in May 2017. Paragraph 1 of the order provided that the periodical payments (now varied) would cease on the following events:
- the death of either the Applicant or Respondent;
- the Applicant’s remarriage; or
- further order
- Clearly (b) had been drafted incorrectly by W’s counsel, since H was the Applicant in this application. As a consequence, the situation was seemingly reversed from that of the 2015 order: now the payments would in theory cease on H’s remarriage, rather than W’s.
- The next event to occur was in October 2018 when H wrote to W to inform her that he would be remarrying. He did so in February 2019. H then wrote to W to inform her that the 2017 order entitled him to cease making periodical payments to her.
- On being invited by W to agree to the 2017 order being corrected, H refused. W then applied to correct the order pursuant to the slip rule. In September 2019 DJ Wright made a without notice order on the papers to amend (b) to:
“(b) the Respondent’s remarriage; or…”
- H wrote to the court to ask for a review of DJ Wright’s September 2019 order. In October 2019 there was a hearing before DJ Wright. H relied on the fact that he had organised his life around this order and that there would be far-reaching consequences if that order was now to be changed.
- DJ Wright noted that it was clearly an error in drafting caused by the fact that the 2017 hearing had involved consolidated hearings, making it easy to confuse who was the Applicant, and who was the Respondent. She described it as “a learning lesson, frankly, for all of us.” DJ Wright duly corrected the order pursuant to the slip rule.
- Later in October 2019 H applied for a variation of the periodical payments order, and in December 2019, W emailed the court indicating that she would seek to enforce it. There were some delays in listing at the court and it was not until June 2020 that DJ Wright listed H’s FDR for September 2020. In June 2020 W issued an application for enforcement.
- In July 2020 H had a conference with counsel via direct access. H thereafter notified W that he would appeal the 2019 orders of DJ Wright. In his appeal notice he said he had not understood the apparent significance of the correction of the 2017 order until he had the benefit of legal advice.
- H’s grounds of appeal were:
- whether the court was wrong to amend the 2017 order under the slip rule;
- whether the court was wrong to amend the 2017 order under the slip rule on the basis that the order had ceased to be extant;
- whether the September 2019 order should have been made without notice;
- whether the court was wrong to make the 2019 order on the basis of:
- the delay between the 2017 order and the application to amend;
- the personal and financial reliance H had placed on the 2017 order;
- the fact that H had no other remedy whereas W had a remedy against her former lawyers
- Gwynneth Knowles J dismissed the grounds of appeal, holding:
- the judge was right to amend the 2017 order under the slip rule;
- the status of the order had no impact on the jurisdiction of the court to amend the order in 2019;
- the judge was entitled to make the September 2019 order without notice;
- the judge was entitled to exercise her discretion to amend the 2017 order.
- Gwynneth Knowles J was clearly of the opinion that this was a perfectly suitable case for the slip rule to apply; evidently there had been an unfortunate error which went against the intentions of the court. FPR Rule 29.16(1), which provides that “the court may at any time correct an accidental slip or omission in a judgment or order”, requires no gloss or explanation. The judge noted that this Rule includes no caveats predicated on the status of the order (e.g. whether it was extant or not). Counsel for H was not able to find authority to persuade the judge otherwise. Beyond this point, the rest of H’s grounds of appeal fell away on the basis that the lower court had the jurisdiction and justifications for the other actions impugned.
- In the round it was clear that the court was unlikely to allow H to take advantage of an obvious error on the part of the court; it was for the court to correct this. Gwynneth Knowles J noted: “[I]f I were to accede to that submission [Grounds 1 and 2], I would be permitting the husband to benefit from an error in the order in a manner which the court never intended. That would be profoundly unjust to the wife.”
- Having examined and dismissed the merits of the appeal, Gwynneth Knowles J stated that she would not have granted H’s application for permission to appeal. Moreover, H was not entitled to an extension of time to make his application.