The Elections Commissioner had sought, some time after his order on a petition, to clarify the order from costs.
Held: The Commissioner, and in turn Keith J, had been wrong to consider themselves not bound by Muldoon. What Mr Cripps (the Commissioner) had purported to do went far beyond what the slip rule permitted so that his remarks were ‘wholly without effect’. Sir John Donaldson MR said: ‘if a court has reached a decision which is ambiguously expressed either in the reasoned judgment or in the formal orders giving effect to the decision, the ambiguity of expression can be removed in the exercise of the slip rule powers’. And the slip rule: ‘is surprisingly wide in scope. Its primary purpose is akin to rectification, namely to allow the court to amend a formal order which by accident or error does not reflect the actual decision of the judge. But it also authorises the court to make an order which it failed to make as a result of the accidental omission of counsel to ask for it. It even authorises the court to vary an order which accurately reflects the oral decision of the court, if it is clear that the court inadvertently failed to express the decision which it intended.
‘It is a distinction between having second thoughts and intentions and correcting an award to give effect to first thoughts or intentions which creates the problem. Neither an arbitrator nor a judge can make any claim to infallibility. If he assesses the evidence wrongly or misappreciates the law the resulting award or judgment will be erroneous but it cannot be corrected under section
17 (of the Arbitration Act 1950) or under the old Order 20 Rule 11. It cannot normally be corrected under section 22 (where the arbitrator has made a mistake). The remedy is to appeal if the right of appeal exists. The skilled arbitrator or judge may be tempted to describe this as an accidental slip but this is a natural form of self-exculpation.
He also approved the commentary in Mustill and Boyd on Commercial Arbitration at page 406: ‘This [the Arbitration Act 1996] enables the arbitrator to make an award on a claim which he has inadvertently overlooked such as an award of interest or to correct errors of accounting or arithmetic such as attributing a credit item to the wrong party but the section does not give the arbitrator licence to give effect to second thoughts on a matter on which he has made a conscious judgment.’
So far as the adjudication ‘slip rule’ is concerned, the following can be said:
(a) An adjudicator can only revise a decision if it is an implied term of the contract by which adjudication is permitted to take place that permits it. It does not follow that, if it is purely a statutory arbitration under the HGRCA (if there is no contractual adjudication clause), such implication can be said to arise statutorily.
(b) If there is such an implied term, it can and will only relate to ‘patent errors’. A patent error can certainly include the wrong transposition of names or the failing to give credit for sums found to have been paid or simple arithmetical errors.
(c) The slip rule cannot be used to enable an adjudicator who has had second thoughts and intentions to correct an award. Thus for example, if an adjudicator decides that the law is that there is no equitable right of set off but then changes his mind having read some cases feeling that he has got that wrong, such a change would not be permitted because that would be having second thoughts.’
Sir John Donaldson MR set out the concept of functus officio: ‘Most courts continue in existence over a period of time and deal with many different and separate proceedings. Questions arise as to whether and to what extent the court has finally disposed of each proceeding or issue arising in such a proceeding. When it has, the judge who presided is said to have become functus officio, quoad that issue or those proceedings. An election court, or at least one concerned with a petition questioning a local election, is somewhat different. It is brought into existence by the appointment of a barrister to constitute that court and the trial of that petition is the life-work of the court. When that trial has been concluded in accordance with s. 125 of the Act of 1949, not only is the barrister functus officio but the court ceases to exist.’
and: ‘It is not . . necessary to consider whether on that day he was sitting as ‘Mr Commissioner Cripps’ in or as a local election court or whether his remarks were those of ‘Mr Anthony Cripps QC’ speaking under a misapprehension as to his capacity. Suffice it to say that although by section 115(6) of the Act of 1949 a local election court has ‘for the purposes of the trial . . the same powers and privileges as a judge on the trial of a parliamentary election petition’ (our emphasis) which would import the High Court slip rule power, it is probable that these powers are inapplicable once the trial has been concluded by the formalities prescribed by section 125 and that thereafter slips must be corrected by the High Court under the powers contained in section 137(3). However, even if Mr Cripps had been appointed as a deputy High Court judge and invited to exercise the powers of the High Court, for the reasons which we have given, he could not properly have ‘corrected’ the order which he had made in a wholly different capacity.’
Sir John Donaldson MR, Fox and Stephen Brown LJJ
[1984] 3 WLR 53, [1984] 1 QB 686, [1984] 2 All ER 705
England and Wales
Citing:
Appeal from – Regina v Cripps; Ex parte Muldoon QBD 1983
The election commissioner, Mr Anthony Cripps QC, had purported to explain many months later what he had meant in an order for costs which he had made when handing down his judgment on an election petition. It was argued that he had had the power to . .
Cited by:
Cited – The Conservative and Unionist Party v The Election Commissioner CA 23-Nov-2010
A losing candidate at a local election alleged corrupt and illegal practices relating to the entry of non-existent people on the electoral roll and using postal votes. The Election Commissioner found this proved and the election void, and awarded . .
Binding – The Conservative and Unionist Party v The Election Commissioner and Others Admn 19-Feb-2010
A local election result had been set aside for fraud in the winning Conservative candidate. The Commissioner made an order for costs against his party which was now challenged for lack of jurisdiction the Commissioner being functus officio, and the . .
Lists of cited by and citing cases may be incomplete.
Arbitration, Litigation Practice
Updated: 13 December 2021; Ref: scu.654116
