Correction of accidental mistakesTimes 26 FebruaryTimes 9 July
15.13A tribunal loses its jurisdiction to decide a case once its decision has been promulgated. The purpose of promulgation is to give effect to the decision made by the tribunal. In order to give full effect to this purpose, there must be a power to correct accidental mistakes in the decision as promulgated and in the reasons given for it.
Under TCEA
15.14Under TCEA, this power is authorised by paragraph 15 of Schedule 5. Paragraph 15(1) authorises the rules of procedure to allow for the correction of accidental errors in a decision or record of a decision. Rules of procedure have been made under that authority. UTR r42 is illustrative:
1See also: GRC Rules r40; HESC Rules r44; IAC Rules r31; PC Rules r50; SEC Rules r36; Tax Rules r37; WPAFC Rules r34. The CPR equivalent is CPR 40.12.The Upper Tribunal may at any time correct any clerical mistake or other accidental slip or omission in a decision or record of a decision by–
(a)sending notification of the amended decision, or a copy of the amended record, to all parties; and
(b)making any necessary amendment to any information published in relation to the decision or record.
When correction is allowed
15.15The power allows a decision to be corrected. It does not allow a decision to be changed from the one that the tribunal intended to make.
2Lord Halsbury in Preston Banking Co v Williams Allsup and Sons Ltd [1895] 1 Ch 141 at 143; Wordingham v Royal Exchange Trust Co Ltd [1992] Ch 412; R&V Versicherung AG v Risk Insurance and Reinsurance Solutions SA (2007) Times 26 February; AS v Secretary of State for Work and Pensions [2011] UKUT 159 (AAC) at [16]. The court rule was used to allow the correction of oversights, but this result is now achieved using the power to vary an order.
3Tibbles v SIG plc [2012] 1 WLR 2591 at [53].15.16The decision as promulgated may be corrected so as to accord with the decision that was announced orally. In this case, the difference between the oral and written decision shows that a mistake has been made, although it does not show which is the correct version.
15.17Even if the two versions of the decision are in accord, the decision as promulgated may still be corrected so as to accord with the decision as the tribunal intended to announce it. In this case, the mistake is not apparent from the difference between the two versions of the decision. The circumstances of the case may make it clear that a mistake has occurred. For example: the interlocutory discussion may show the true intention,
4As in Adam & Harvey Ltd v International Maritime Supplies Co Ltd [1967] 1 WLR 445. as may the nature and extent of the changes.
5AS v Secretary of State for Work and Pensions [2011] UKUT 159 (AAC) at [16]. It is not appropriate to use this when there is a dispute about what the correct decision should be.
6Tager v Commissioners for Her Majesty’s Revenue and Customs [2015] UKUT 663 (TCC) at [21]. Ultimately, however, it is necessary to trust the honesty and integrity of the judge who made the decision.
15.18In
Munks v Munks,
7[1985] FLR 576. the Court of Appeal decided that a decision that was made without jurisdiction could not be corrected and had to be set aside. However, that must be read in its context: the judge there intended to make the order at a time when he had no jurisdiction. The Court did not decide that a correction, properly made to reflect the intention of the judge, could not have brought the decision within jurisdiction.
A power, not a duty
15.19The rule only confers power to correct a decision as promulgated. There is no duty to do so. Usually, it is appropriate to exercise the power. But in some cases, it may not be appropriate. The test is whether something has happened since the decision was promulgated that makes it inexpedient or inequitable to correct it.
8Moore v Buchanan [1967] 1 WLR 1341. The mere fact of delay is not enough.
9Tak Ming Co Ltd v Yee Sang Metal Supplies Co [1973] 1 WLR 300 at 307–307.Who may exercise the power
15.20The power is conferred on the tribunal. The composition and constitution of the tribunal will be governed by the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 and practice statements issued thereunder. The power has not been confined to a tribunal of the same constitution as made the decision. There is no objection in principle to the power being conferred on administrative staff.
10For example: the power was conferred on a clerk by Social Security and Child Support (Decisions and Appeals) Regulations 1999 reg 56(1) (revoked). Compare the inherent power, discussed below. However, correction is not within the Senior President’s practice statements on delegation to staff.
11See chapter 7.Inherent power
15.21According to Sedley LJ in
Akewushola v Secretary of State for the Home Department, the power to correct slips is the only inherent power of a statutory tribunal.
12[2000] 1 WLR 2295 at 2301. This follows from the tribunal’s duty to make a decision and the function of promulgation to issue that decision.
15.22The TCEA Sch 5 para 15(3) preserves any power to correct errors that is otherwise exercisable.
15.23The power is inherent in the tribunal.
13Sedley LJ in Akewushola v Secretary of State for the Home Department [2000] 1 WLR 2295 at 2301. So, it may be exercised by any appropriately constituted tribunal with jurisdiction, whether or not the same as the one that is alleged to have made the mistake. But it cannot be exercised by an administrative official.
14Memminger-IRO GmbH v Trip-Lite Ltd (1992) Times 9 July.Powers to amend reasons for decision
15.24The power to correct is limited to accidental errors in order that the decision as promulgated reflects the decision made by the tribunal. It does not allow the tribunal to amend the reasons for its decision or to add reasons that it did not intend to include. However, there are powers that allow for a tribunal to amend or supplement its reasons. First, the courts have also recognised that a tribunal may be allowed, or invited, to supplement its reasons.
15See chapter 4. Second, the Upper Tribunal has power under UTR r5(3)(n) to:
(n)require any person, body or other tribunal whose decision is the subject of proceedings before the Upper Tribunal to provide reasons for the decision, or other information or documents in relation to the decision or any proceedings before that person, body or tribunal.
Third, there is the tribunal’s power on review.
16See para 15.39 onwards.Directions
15.25The rules of procedure allow a tribunal to amend a direction, on application by a party or on its own initiative.
17See chapter 7. As the tribunal also has power to set aside a direction and issue another in different terms, it will probably never be necessary to determine the precise scope of the power to amend.