In Cropper v Smith CA 1883 26 Ch D 700 (C.A) Bowden L.J delivered the renowned passage below which has been cited by many in cases where there has been manifest mistake that ought to be corrected. Civil process is to operate so that substantive justice is achieved as expeditiously and inexpensively as possible, so as to do justice between the parties in accordance with the overriding objective.


In 1873 letters patent for improvements in lace machines were granted to H., who in 1877 went into liquidation, and the patent was sold by the trustee to the Plaintiffs. H. afterwards entered into partnership with S.9 and this action was brought against S. & H. to restrain them from infringing the patent. By an order made when the action had come on for trial, it was postponed, with liberty to S. & H. to deliver specified objections. Cropper v Smith CA 1883 judgment

These were that S. & H. denied infringement, and that S. objected to the validity of the patent on the ground of want of novelty and insufficiency of the specification. From the cross-examination of the Plaintiffs’ witnesses it appeared that one of the subsidiary combinations in the machine was not novel. The Court of first instance was of opinion that the patentee had not claimed this subsidiary combination as his invention, held the patent valid, and granted an injunction against both Defendants, and an inquiry as to damages. The Defendants appealed. The Court of Appeal held that on the construction of the specification H. had claimed the subsidiary combination as his invention, and that the patent was invalid, and that there being nothing to prevent S. from insisting on this objection, his appeal must succeed :—

Held, that H. was not estopped from disputing the validity of the patent, either by matter of record, on the ground that the letters patent were of record ; or by deed, by reason of the specification being under his seal ; or by matter in pais, on the ground of the statements in his petition to the Crown, there being nothing to shew that the plaintiffs bought on the faith of those statements.

Bowden LJ in Cropper v Smith CA 1883 said:

Now it is a well established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace . . It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.

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Cropper v Smith CA 1883 26 Ch D 700 (C.A) – The full PDF judgment (view only)

Further reading:

In Anisminic Ltd v Foreign Compensation Commission [1969] the House of Lords established the “collateral fact doctrine” which means essentially that error of law by a public body renders the decision a nullity.

Intelligence UK International’s pièce de résistance guide for litigants seeking to establish a motion to set aside an order for fraud, miscarriage of justice or manifest mistake.

Insolvency proceedings? Learn about going behind a judgment in bankruptcy or any insolvency proceedings. The doctrine of no res judicata enables the litigant to have more than one bite at the cherry in cases where grounds are made out to challenge the underlying debt, even if that debt is underpinned by a judgment.