Rule 40.12 states that: “The court may at any time correct an accidental slip or omission in a judgment or order.”
On the 18th December 2018, a possession claim was heard on the grounds of rent arrears (approximately 4 months arrears at the date of the hearing). Ground 8 of Schedule 2 Housing Act 1988 provides that where the rent is more than two months in arrears at the time of notice and at the time of the hearing, the Court must make a mandatory possession order. The advocate who attended reported that the Judge had made a mandatory possession order.
When the order came through it read:
The Claimant Solicitors did nothing when the order came through and probably hoped that the tenant would do nothing. The Claimant applied for a warrant for possession and bailiffs gave notice of eviction. The tenant sought advice and with the ‘discretionary’ order in hand, made an application to suspend eviction. I was instructed to attend the hearing and spotted that the order was discretionary. The order also stated that the Defendant did not attend the possession hearing and the arrears were more than 4 months at the date of the hearing. I asked the solicitors whether there was an error on the order and they told me there was and it should have been mandatory. They instructed me to seek a correction under Rule 40.12. This would result in the application being automatically dismissed. I should point out that the application hearing was listed for 8th February and I was instructed on the 7th.
The Judge confirmed that the order should have read ‘mandatory’ and could not see any immediate reason to not amend the order however the tenant’s representative submitted that the Court had no power to correct the order and relied on Diab v Countryside Rentals. The Judge recognised that the issues raised by the tenant’s representative required determination and stated that she would need to relist the matter for a separate hearing. In addition, she was highly critical of the Claimant as they ought to have written to the Court upon seeing the error and such action would have prevented the application by the tenant and also would have prevented the significant waste of the Court’s resources. The inaction of the Claimant also caused significant prejudice to the tenant. The matter was relisted for the following Monday (the warrant was due to be executed on the Tuesday). The Judge when relisting the matter stated very clearly that she may have to consider cost sanctions against the Claimant.
At the relisted hearing, the Judge heard submissions on the case law which included the cases of Bristol-Myers Squibb v Baker Northern Pharmaceuticals and Baygreen Properties Ltd v Gil and ordered the application to suspend the warrant be dismissed. The order was amended to say ‘mandatory’. However, the Judge was very troubled by the decision as the execution of the warrant would take place the next day and given the serious issues of law that had been raised, she gave the Defendant permission to appeal. Of course, the execution was taking place the next day.
In this action, the failure to deal with the error caused serious prejudice to the Defendant tenant and caused two hearings to take place when there ought to have been none. If an error is spotted on an order, it is advisable to get it amended immediately. This is a simple task. As can be seen here, a failure to do so can cause significant wasted costs and resources.