[2024] EWHC 1032 (TCC)

Did the Revised Decision supersede the Decision?

It was common ground at the hearing before me that:

Did the Revised Decision consist of the correction of “a clerical error”? The OED provides the following assistance in relation to the word “clerical”:

“Of or pertaining to a clerk or penman (see clerk n. 5), of clerks; esp. in clerical error, an error made in writing anything out.

1798

The syllable ‘out’ being omitted through a clerical mistake in the person who drew the will.

E. H. Bay, Rep. Cases Superior Courts S.-Carolina 80Citation details for E. H. Bay, Rep. Cases Superior Courts S.-Carolina”.

The wording of paragraph 22A (1) was considered by Mr Roger ter Haar KC sitting as a Deputy High Court Judge in Axis M&E UK Limited v Multiplex Construction Europe Limited [2019] EWHC 169 (TCC), with emphasis supplied:

“29.

In NKT Cables A/S v SP Power Systems Ltd [2017] CSOH 38 in the Outer House of the Court of Session, Lady Wolffe considered a case in which it was argued that a provision equivalent to the statutory slip rule should be implied. This led her to consider the effects of a slip rule in those terms. At paragraphs [93] and [94] she said (emphasis in the original):

[93] What is the scope of the slip rule? Looking at regulation 22A of the Scheme as the likely formulation of the slip rule to be implied, the scope of the rule is relatively narrow: it enables the adjudicator “to correct his decision so as to remove a clerical or typographical error arising by accident or omission”. Three features of this call for comment. First, the rule is not directed to pure omissions, ie something that an adjudicator meant to do but by some oversight he forgot to do. Secondly, the slip is in the nature of a “clerical or typographical” error. This betokens an error in expression or calculation of something contained within the decision, not an error going to the reason or intention forming the basis of that decision. Such slips might include an arithmetical error in adding or subtracting sums, mis-transposing parties’ names, a slip in carrying over a calculation from one part of the decision to another or, as here, the mistaken insertion of a rogue number. Thirdly, it is this kind of slip (clerical or typographical) that is as a result of “accident or omission”. This too, points to correction of slips or mistakes in expression, rather than changes to the reasoned or intended basis of the decision. All three of these features are consistent with the observations in Bloor and the analysis of the cases referred to therein, about the slip rule essentially being confined to corrections of the adjudicator’s “first thoughts and intention”. Were the scope of the slip rule broader, ie to include corrections of pure omissions (as I have called them) or to give effect to second thoughts or intentions, it would have the potential seriously to undermine the interim finality which is a feature of adjudications under the Scheme.

[94] While Bloor is a case about the implication of a term at common law, it seems to me that the scope of regulation 22A in the Scheme is entirely consistent with the discussion in that case, about the purpose and scope of a slip rule. If that is correct, the scope of the slip rule is confined to correcting a typographical or clerical error of something expressed within the four corners of the decision and which is apparent on the face of the decision. It is not warrant to correct what are more substantive errors, in the sense of a mistake of fact or law. Nor, in my view, is it warrant to correct a pure omission, being something that the adjudicator intended to include or take account of but which he has wholly omitted in reaching his decision.”

It seems to me that a “clerical error” occurs where the (probably metaphorical nowadays) clerk or penman is given instructions by the author of a decision and writes them down wrongly.

That is not what happened here. There was no clerical error in the Decision. Rather, following further submissions which went far beyond the scope of paragraph 22A (1), the Adjudicator concluded that there was a matter of substance which he had not adequately addressed in the Decision. That may or may not be so, but that is not something which the Adjudicator is empowered to “correct” under paragraph 22A (1). In reality, the further submissions from LJJ had prompted the Adjudicator to add words in relation to something that the Adjudicator possibly intended to include or take account of but which he had omitted in reaching his decision.

I therefore conclude that LLJ’s first ground of resistance fails.