The court had been called upon to decide the domicile of Lord Inchcape at the date of his death. Counsel then asked for the costs of all parties to be paid by the estate. However, costs had been incurred before the issue of proceedings and these were not covered by the order. An application to amend the judge’s order was made under the slip rule; and the slip was said to be counsel’s accidental omission to ask for the costs in question to be paid out of the estate. Morton J referred to Fritz v. Hobson (1880) 14 Ch D 542, a decision of Fry J, and continued: ‘In the course of the argument before Fry J., counsel submitted: ‘O. XLI.A does not apply. This is not an accidental slip or omission. Those words mean only an accidental slip or omission to embody in the order something which the court in fact ordered to be done; they do not apply to an accidental omission of counsel or solicitor to ask for, or of the court to provide for, something which ought to have been provided for.’ That argument precisely expresses the doubt which I felt when the case first came before me and before this authority had been cited. The error which it is now sought to set right, if it can be properly described as an error, did not arise from an omission to embody in the order something which I in fact ordered to be done, but it arose from an accidental omission of counsel to ask that a particular thing might be done. However, Fry J., after dealing with the other grounds on which he had power to correct the order, said: ‘There is another ground on which, in my opinion, I have jurisdiction to make the order asked for, namely, under O. XLI.A. In my view the error in the present case has arisen from the accidental omission of counsel to call my attention to the adjourned motion when I pronounced my judgment, an omission very natural at a time when counsel’s attention was directed to matters of greater importance. In substance, the motion was before me at the trial, for my attention was called to the affidavits made upon it. I recollect quite enough of what took place, and I am confirmed in my recollection by the notes which I made at the time, to know that all the affidavits upon the motion were in substance before me at the trial, and that the various witnesses who made those affidavits were examined in the course of the proceedings. On this ground, therefore, I think I have jurisdiction to make the order.’ It might be said that there is a distinction between Fritz v. Hobson and the present case in that in Fritz v. Hobson Fry J. was dealing with the costs of a motion which, as he says, was in substance before him whereas I am asked now to deal with costs incurred before the issue of the summons, but I think that the reasoning in Fritz v. Hobson can be applied to the present case. It would appear that Fry J. had sufficient recollection of the whole matter in Fritz v. Hobson to feel sure that he would have made the order if he had been asked to do so. So, in the present case, I have a sufficiently clear recollection of the evidence which was produced before me as a result of those researches to feel sure that I would have made the order if I had been asked to do so.’
Judges:
Morton J
Citations:
[1942] Ch 394
Cited by:
Cited – Smithkline Beecham Plc and others v Apotex Europe Ltd and others PatC 26-Jul-2005
Application was made to join in further parties to support a cross undertaking on being made subject to interim injunctions.
Held: On orders other than asset freezing orders it was not open to the court to impose cross-undertakings against . .
Applied – Tak Ming Company Limited v Yee Sang Metal Supplies Company (Hong Kong) PC 11-Dec-1972
(Hong Kong) At trial, the successful party had omitted to ask the court to award interest. Despite some delay, the court had acceded to the request to amend the order under the slip rule to add an appropriate award. The paying party appealed.
Lists of cited by and citing cases may be incomplete.
Wills and Probate, Litigation Practice
Updated: 30 April 2022; Ref: scu.231214