It’s sadly all too common that there are mistakes in court orders when they arrive following a hearing, but what can be done about it? This blog post takes a look at the issue and possible ways to rectify the situation.
There is a mechanism called the slip rule which we will take a look at.
You may not be aware that it might not be the court itself that writes your order. Why is that? Well, usually the court order is written by the ‘first represented party’. What does this even mean?
Well, the first represented party would be the first in this list
Applicant
Respondent
So if both parties are represented it will be the applicant's representative.
If the respondent is represented but the applicant is not, then the respondent's representative will write it.
If neither party is represented then the court will write the order.
But why do the other side’s representation get to write the order – surely that’s not fair?
Well, that shouldn’t be the case. Solicitors and barristers are also by default ‘officers of the court’ which means a few different things, but the parts relating to this are that they have duties, legal responsibilities and ethical obligations to the court which actually outrank the duty to their clients. So technically, there should be no issue.
The thinking is that because of this extended duty they are given responsibility to act on behalf of the court in producing the order. The difficulty comes because the solicitor or barrister will also, understandably, want to promote their client’s best interests too. Whilst they cannot change the orders made by the court, I have known wordings drafted to better suit their client, and more besides.
We can therefore safely assume that there are mistakes that are both deliberate and accidental.
TOP TIP: in your hearing, always ask if you can receive a draft copy of the order for approval.
What can I have changed?
Mistakes such as a word being spelt incorrectly are not really worth raising, but anything that changes the understanding of how the order works definitely is, but only if it was made clear otherwise in court. You can’t simply request a change because you don't agree with it. There must be a clear difference between what was said in court and what was in the order, otherwise what you’re asking for is an appeal.
It may be that something has been added that wasn’t ordered in court, or something has been omitted that was said. Either of those would be a good reason to have the order amended. Keep in mind that an order is in force from the moment it is made in court, not when you receive the copy of the written order.
If something lacks clarity in the order then it might be possible to ask for the wording to better clarify the issue, though it is headed towards variation application territory if it wanders too far away from the original order of the court.
What you can’t use the slip rule for is substantive mistakes such as an order that was made incorrectly – this would need to be dealt with via variation or appeal. You also can’t use it to request changes that make a difference to what was ordered in court.
How do I go about it?
The slip rule. This is a rule that is in place to rectify issues such as these, but it’s only designed to be used for those examples highlighted above – in short, the scope it has is limited.
How you go about it would first depend on who wrote the order. If the order is still in draft and you’ve been sent a copy for ‘approval’ by the representation for the other side then it’s a good time to raise your concerns. To get the best chance of success here you need to conduct yourself politely and respectfully, even though you may not feel this way. You could perhaps say something like this:-
“Dear Mr Smith, thank you for the copy of the draft order which I can confirm I have received. You have said at paragraph 6 that [Insert what has been written]. However my recollection of what was said at the hearing was in fact [Insert what was actually said by the court]. Please would you amend this?”
If they do agree with you, then great, but most likely they will send you back an email saying that they won’t but that they’ll flag it for the judge’s attention. After that it’s up to the judge to decide on, but once the judge has approved the order it is sealed, but that’s not necessarily the end.
If you receive a copy of the sealed order it can still be amended under the slip rule. It used to be the case that this was meant to be within 72 hours of the order being served, but it seems lately that the slip rule is being allowed to be invoked further along. I would always advise to get it in as soon as possible though.
How can I actually have something looked at by the court?
The courts vary quite a lot in so many ways, but one of the main bugbears with the system is how inconsistent they are with procedures. It may be that your court will accept any proposed changes by email, but others will require a full application using a C2 form. Given that there is a cost associated with the C2 application I would always suggest emailing the court first, but asking them whether they would prefer to receive the request via C2. So something like this:-
“Dear XYZ, please find attached my amendments to the order of XYZ, made on the ABC, which I would like to be amended as incorrect under the slip rule. If you would prefer me to submit this via C2 application then please let me know at the earliest convenience”
Remember, nobody is immune from mistakes. Even the most expensive King’s Counsel barrister can make typos or even make errors as to what was said and ordered in court. Don’t be afraid to stand your ground if it is not what you recall from the court hearing.
It could be that the court decides, still, to go with the incorrect version. If at this point you are still in proceedings then you have two options:-
Wait until the next hearing to have it corrected – mention it in your position statement,
-or-
File a C2 (if you didn’t previously) in order to have the court consider the issue.
You have to consider proportionality here. If it is something trivial then it may not be worth the time and cost to rectify, especially if you have another hearing in say 2 or 3 months.
If the court still refuse to amend the mistake, and you are no longer in proceedings then the only way to get something changed at that point is to file for a variation. This is via C100, and involves starting the case again from scratch.
WARNING!
A note of caution. Do not file for variation unless circumstances have significantly changed since the last proceedings, or the mistake is having such a profound impact on your family that it is unthinkable not to get it changed, or at least 18 months have passed. This is because the court will look negatively upon you for doing so within a short space of time, and can actually mean you’re less likely to get the orders you’re looking for granted, and can even result in you being the recipient of a 91(14) order barring you from making any future applications (without prior expressed permission of the court) for a period of time.
I hope this has helped! If you need to talk through your options then please remember the Mckenzie Friend team at First Family Law are available by appointment to assist you with your case. Please get in touch by emailing info@firstfamilylaw.co.uk or booking an appointment with me directly here.
Nothing in this blog should be treated as legal advice. All views remain my own.
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