In The Yin Nin Savings Mortgage Loan & Land Investment Co Ltd v Occupiers of Premises,(1) the Hong Kong Court of Appeal allowed the plaintiff's' appeal, thereby setting aside a judge's decision that a judicial officer had incorrectly amended a consent order using the "slip rule". The second plaintiff had been joined as a plaintiff pursuant to the consent order. It appears the judicial officer's intention in approving the consent order had also been to allow for the two plaintiffs to be separately represented as an exception to the general rule against separate representation for co-plaintiffs – however, the consent order had failed to provide for separate representation. The judicial officer had amended the consent order by applying the slip rule to correct what he had considered to be an accidental omission. On appeal, a judge had disagreed and directed that the judicial officer reconsider the issue of separate representation. On the plaintiff's appeal, the Court of Appeal set aside the judge's decision and reinstated the original decision. In doing so, the Court of Appeal helpfully reviewed the scope of the slip rule.
In brief, further to various transactions relating to a plot of land in Hong Kong, the first and second plaintiffs became the registered owners of the land. The proceedings were originally commenced by the first plaintiff. On the first plaintiff assigning their rights in the action to the second plaintiff, the second plaintiff applied to be joined as a plaintiff. The plaintiffs' claims were for possession against some of the defendants as (among other things) alleged occupiers.
The first and second plaintiffs were represented by different legal representatives. Of the relevant defendants, the fourth, sixth and eighth defendants (the multiple defendants) were represented by the same legal representatives and the fifth defendant was represented by his own legal representative. The fifth defendant's legal representative queried whether the plaintiffs should be separately represented because of the general rule against separate representation for co-plaintiffs.(2) No such query appears to have been made at the time by the legal representatives for the multiple defendants. Subsequently, the parties agreed a consent summons that provided for the second plaintiff to be joined as a co-plaintiff, with none of the defendants formally objecting to separate representation.
The consent summons was approved as a consent order in October 2018 by a judicial officer (known as a "master"). However, while the consent order provided for the second plaintiff to be joined to the proceedings, it made no mention of the court's approval of separate representation for the co-plaintiffs.
In April 2019, the legal representatives for the multiple defendants suggested (apparently, for the first time) that they opposed separate representation for the co-plaintiffs. The court directed that the parties seek clarification from the master as to whether he had granted an order for separate representation in the consent summons and, if so, whether the consent order should be amended pursuant to the slip rule to include an order for separate representation.(3)
The slip rule allows the court to correct clerical errors and accidental slips or omissions in a judgment or court order, to express the manifest intention of the court – the rule does not allow the court to correct a mistake of substance, in which case an aggrieved party can apply to set aside or appeal the court order.
Applying the slip rule in considering the plaintiffs' application to amend the consent order, the master amended the consent order in May 2019 to include a provision allowing the plaintiffs to be separately represented. The eighth defendant appealed the master's decision and a judge allowed that appeal. In short, the judge disagreed with the application of the slip rule and directed that the issue of separate representation should be considered by the master after having heard legal submissions from the respective parties.
The plaintiffs appealed the judge's decision. On appeal, the primary issue for determination by the Court of Appeal was whether the judge had been correct in directing that the master reconsider the issue of separate representation or whether the master had been correct in applying the slip rule to make clear his intention to allow for separate representation of the plaintiffs.
The Court of Appeal allowed the plaintiffs' appeal, thereby setting aside the judge's decision and reinstating the master's order.
Application of slip rule
The Court of Appeal considered that, based on the procedural history of the case and the transcript of the hearing before the master in May 2019, it was clear that the only matter before the master at that hearing had been the slip rule application to amend the consent order.(4) The Court of Appeal considered that, in those circumstances, the master must have been satisfied that the consent order had failed to record his manifest intention to allow the plaintiffs to be separately represented once the second plaintiff had been joined. Indeed, this conclusion had not been challenged by the judge, despite his direction that the master reconsider the issue of separate representation. The Court of Appeal stated:
In these circumstances, the Master must be entitled, and was obliged, to apply the slip rule to amend and correct the Consent Order so as to make clear his manifested intention. There was no error in the Master invoking the slip rule or in amending the Consent Order in terms of the Amendment Summons.(5)
Reconsideration of issue of separate representation
As regards the judge's direction that the master had been duty bound to reconsider the issue of separate representation, the Court of Appeal held that the judge had failed to have regard to the scope and application of the slip rule. When the master had amended the consent order to allow for separate representation, he had not corrected a mistake as to the nature of the order. Rather, the master had amended the consent order to reflect what he had intended to order. The Court of Appeal concluded:
Once the Master was satisfied that the Consent Order failed to express his manifested intention of allowing separate representation for the plaintiffs, he was neither obliged nor permitted to reconsider the separate representation issue. The fact that the Judge would have approached the issue differently is not the point.(6)
The Court of Appeal's judgment is a helpful review of the scope and application of the slip rule. The judgment is also a useful reminder to parties that are legally represented to ensure that consent summonses properly reflect the specific orders sought from the court prior to filing them with the judge or judicial officer.(7) Consent orders are important in practice for "workaday" matters and the process of getting them approved and sealed can be time-consuming – as can the process of having them amended.
In this case, it was clear that the master had considered the issue of separate representation when approving the consent order but, because of an oversight, that provision had been overlooked in the order. While (on the facts) the addition of a provision allowing for separate representation came within the scope of the slip rule, it appears to reflect a significant omission.
In the Court of Appeal's judgment, there are also some interesting passages about the relevance of the delay in the event that the eighth defendant had applied to set aside or appeal the consent order out of time rather than appeal the master's order invoking the slip rule. Indeed, there are some suggestions in the judgment that the eighth defendant's objection to the issue of separate representation for the plaintiffs may have been an afterthought – the eighth defendant, apparently, having failed to consider the implications of this when agreeing to the consent order in or about September 2018.
While separate representation for co-plaintiffs is not the norm, this is a rule of practice rather than a principle of law that can be departed from in appropriate circumstances.(8) Indeed, the Court of Appeal's judgment acknowledges in passing that the courts have enough case management powers to deal with concerns as to procedural complications or additional costs from allowing separate representation for co-plaintiffs.(9)
For further information on this topic, please contact Antony Sassi, Jacky Darsono or David Smyth at RPC by telephone (+852 2216 7000) or email ([email protected], [email protected] or [email protected]). The RPC website can be accessed at www.rpc.co.uk.
(1)  HKCA 613, 4 May 2022.
(2) The primary rule is that there should be no separate representation of co-plaintiffs – however, as the Court of Appeal noted, this is a "rule of practice rather than a principle of law" and may be departed from in appropriate circumstances (supra note 1, at para 40).
(3) Rules of the High Court, Order 20, rule 11 ("Amendment of judgment and orders").
(7) Rules of the High Court, Order 42, rule 5A ("Consent judgment and orders"). According to paragraph 12 of the Court of Appeal's judgment, it should have been apparent from the amended statement of claim that the first and second plaintiffs were to be separately represented.