Appeals - Challenging Judgments

Question 1

Name the case.

the judge had awarded the Claimant £250.00 against two defendants; however, the judgment was wrongly recorded as ordering that each defendant was liable for half judgment and costs. On Appeal, the court held that the error in recording the judgment could be rectified under the slip rule as it is clearly a case where the judge made no mistake at all and there was no desire to correct any error he had made. The court further stated that the judge’s manifest intention had been expressed and had been mistakenly interpreted by what must have been an accidental slip.

Answer 1

Smith v Harris [1939]

Question 2

What types of Orders require permission to appeal?

Answer 2

interlocutory orders save in certain circumstances

Question 3

What types of Orders cannot be appealed?

Question 4

Where the slip rule is applicable and the court does not grant the order sought, what steps should be taken?

Answer 4

If the court does not grant the order for rectification sought in the application, then a notice of appeal may be filed to appeal the decision.

Question 5

True or False.

an order that is silent as to costs means that each party must bear its own costs. The slip rule would not apply in these circumstances as there was no error made.

Answer 5

True

Question 6

Where the slip rule is applicable and the court does not grant the order sought, what steps should be taken?

Answer 6

If the court does not grant the order for rectification sought in the application, then a notice of appeal may be filed to appeal the decision.

Question 7

What is the Application test

Answer 7

if it refused, the judge’s order would be interlocutory and equally, where it is granted, the judge’s order remains interlocutory.”

Question 8

What types of orders can be appealed as or right?

Answer 8

final orders

Question 9

What is the procedure for correcting an order under Part 42.10 of the CPR?

Answer 9

Notice of Application for Court Orders with Affidavit in support and Draft order

Question 10

What subsequent application should be made where an appeal of a money judgment is being made?

Answer 10

It would be prudent in the circumstances to also file an application for stay of execution pending the appeal considering that the debt would have become payable at the date of the order.

Question 11

Give examples of interlocutory applications for which permission would be required to appeal order?

Answer 11

Striking Out

Summary Judgment

Question 12

What is the slip rule and when can it be invoked?

Answer 12

The slip rule is a process by which the court may correct an accidental slip or omission in a judgment or order.

According to CPR 42.10 (1) The court may at any time (without an appeal) correct a clerical mistake in a judgment or order, or an error arising in a judgment or order from any accidental slip or omission.

Question 13

In the case where a judge, in the formal order, signs judgment for a greater sum than that which was claimed, is this a mistake or an error amounting to an accidental slip that could be corrected by the application of Rule 42. 10 of the CPR.

Answer 13

No

Question 14

what is the difference in procedure between an order that requires permission to appeal and an order that can be appealed as of right?

Answer 14

Where permission is required and application for leave to appeal has to made to the Supreme COurt (usually the same judge) for permission and if permission is granted then Notice of Appeal is filed

Where no permission is required the Notice and Grounds of Appeal are filed with the Court of Appeal

Question 15

If an attorney forgets to ask the court for costs in an interlocutory application and the order has not yet been filed and perfected. Can the attorney rectify this?

Answer 15

the order has not yet been filed or perfected. So, at this point, the judge is not functus officio. However, the hearing of the application has concluded. In order to include an order for cost, you should call/write to the judge requesting that an order for cost be included or a further hearing on the issue of costs be held.

Question 16

What elements must be present to trigger the slip rule?

Answer 16

a clerical mistake,

arising from an accidental slip or omission,

which runs counter to the true intention of the Court.

Question 17

What is the time for appealing a judgment and order?

Answer 17

notice of appeal or notice of application for leave to appeal should be filed within twenty-one days from the date on which the order was signed, entered or otherwise perfected.

Question 18

What orders need not be appealed?

Answer 18

those which may be handled by the same court because they have not decided on merits eg default judgments which may be set aside by a judge of the Supreme court

Question 19

What does it mean for a Court or Judge to be ‘functus officio’?

Answer 19

When a court or judge is functus officio, it means that the judge has discharged his duty and the office or authority is at end.

Once a judgment has been delivered and the order has been perfected, the judge is functus officio: he has no power to make changes in his decision, which can only be questioned by others presiding in the further courts of appeal.

Question 20

What is the purpose of the slip rule?

Answer 20

The purpose of the rule is to bring the judgment or order of the Court complained of, into conformity with the intention of the Court.

Question 21

If an attorney forgets to ask the court for costs in an interlocutory application and the order has been perfected. Can the attorney rectify this?

Answer 21

if a party to litigation does not obtain an order for costs at the time of the making of an interlocutory order by the judge, then the party is not entitled to make a later application for costs in relation to the earlier application. In that case, the judge becomes functus officio.