CPR 40.12 ‘slip rule’ vs CPR PD40E ‘corrections’ explained…, or is it simply about money and job preservation?

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  1. Slip Rule – CPR 40.12 (and PD 40B)
  • Scope: Limited to clerical mistakes, slips, or accidental omissions in a judgment or order.
  • Purpose: Ensures the record accurately reflects what the court intended; it is not a means to change judicial reasoning or outcome.
  • Judicial Discretion: Narrow; mechanical jurisdiction. The court must correct qualifying errors, but has no discretion to revisit the substance of its decision once perfected.
  • Limitation: Cannot correct errors of fact, law, or evaluative reasoning. That must occur before the judgment is sealed.

 

  1. Corrections under PD 40E 3.1 – Embargoed Judgments
  • Purpose: Allows counsel and parties to suggest corrections to a draft judgment prior to hand-down.
  • Scope: Covers both clerical slips and potentially substantive issues (including errors of fact or law).
  • Judicial Discretion:
    • The judge retains full discretion to change their mind prior to perfection.
    • A change may reflect justice, conscience, or reason—not merely mechanics.
  • Judicial Duty: Courts have an equitable duty, rooted in justice, to correct known errors before finality, particularly where failure to do so would give rise to further proceedings or appeals.

 

  1. In re L & B (Children) [2013] UKSC 8
  • Supreme Court held that a judge may revise a judgment before it is perfected—even if this involves a substantive change of mind.
  • This overruled the earlier “exceptional circumstances” rule from In re Barrell Enterprises [1973].
  • Lord Neuberger at [26] stated:

“It takes courage to admit that one has got something wrong, but that is what every judge ought to be willing and, if necessary, unafraid to do.”

 

Fiat justitia ruat caelum; May justice be done though the heavens fall

That is because the truth will always prevail – it is just a matter of time!

 

  • Judges have a duty to get the judgment right, and this duty outweighs any misplaced concern about finality before sealing.

 

  1. Counsel General v BEIS (No. 2) [2022] EWCA Civ 181
  • Addressed the strict confidentiality obligations during the embargo period for draft judgments (PD 40E).
  • The Court of Appeal reaffirmed that:
    • Draft judgments are for internal use to identify corrections;
    • Disclosure beyond counsel and solicitors is a breach of court trust and potentially contempt.
  • Function: The embargo exists to protect the judge’s opportunity to correct mistakes before finality. After hand-down, that jurisdiction ceases except under CPR 40.12.

 

  1. Duty under the Senior Courts Act 1981 – Legal and Equitable Functions
  • Section 49 and related provisions require the High Court to administer “all such remedies… legal or equitable.”
  • The court must also act to:
    • Avoid a multiplicity of suits,
    • Prevent injustice arising from avoidable error,
    • Promote efficiency and finality without sacrificing justice.
  • This means the court has an equitable duty to correct errors of fact or reasoning before sealing a judgment, particularly where doing so would prevent:
    • Appeals,
    • Fresh claims,
    • Procedural duplication.
  • The exercise of that duty may be difficult but is integral to judicial integrity:

“The public interest requires that there should be an end to litigation; but that interest is not served by perpetuating manifest error.”
— Hunter v Chief Constable of the West Midlands [1982] AC 529, per Lord Diplock.

Summary Table (Updated)

Feature CPR 40.12 Slip Rule PD 40E 3.1 Corrections In re L&B (UKSC) BEIS (2022)
Who triggers? Party or court Parties (confidential) Judge may act on conscience Court enforces confidentiality
What can change? Clerical/slip errors only Substantive + clerical Substantive/factual reasoning Limited to clerical suggestions
When? Post-sealing Pre-hand-down Pre-perfection Pre-hand-down only
Discretion? Narrow; no power to revise Wide—judge may change mind Full discretion to correct errors No discretion post-hand-down
Finality? Final judgment unaffected Judgment may evolve Judgment evolves until sealing Judgment final at hand-down
Duties? Ensure accuracy of record Prevent error and injustice Conscientious correction of error Uphold integrity of process
Equitable foundation? No Yes Yes Indirectly (by protecting draft)

 

In Practice

  • Before perfection, the court’s discretion to correct even major errors is alive and well—and morally required where justice demands.
  • Once sealed, only clerical correction is permitted under strict limits.
  • Judges are encouraged—and expected—to exercise moral courage in the service of justice, not personal pride or fear of embarrassment.
  • The balance between finality and fidelity to justice is upheld by the timing of corrections and the statutory equitable powers under the Senior Courts Act 1981.

 

OR IS IT JUST ABOUT THE MONEY THAT JUDGES BREACH THEIR DUTIES NOT CORRECT ERRORS ONCE PUT WITH THE KNOWLEDGE?

= bad faith proven if they are with the knowledge…

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