Dunnes Stores v Taculla Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 12 June 2018
• Neutral Citation: [2018] IEHC 346
• Docket Number: 2015 No 227 MCA
• Court: High Court
• Date: 12 June 2018

[2018] IEHC 346

THE HIGH COURT

Barrett J.

2015 No 227 MCA

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACTS 2000-2014

AND IN THE MATTER OF AN APPLICATION PURSIUANT TO SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT 2000

AND IN THE MATTER OF AN APPLICATION BY DUNNES STORES

Between:

DUNNES STORES

Applicant

– and –

TACULLA LIMITED

Respondent

Jurisdiction – Clerical errors – Prejudice – Applicant seeking an order amending an error in an order – Whether matters should be left to the Court of Appeal

Facts: The applicant, Dunnes Stores, on 24th April, 2018, applied to the High Court seeking an order pursuant to O.28, r.11(b)(i), RSC, amending an error in the order made on 13th March, 2018, to reflect the correct date of perfection of the said order as 13th March, 2018, rather than 11th April, 2018, and correcting the name of the solicitors for Dunnes to read 'William Fry', instead of 'Beauchamps'. To the contention that matters should be left to the Court of Appeal, Dunnes maintained that the respondent, Taculla Ltd, was incorrect in that regard, contending that the Court of Appeal had no jurisdiction to amend the clerical errors in the costs order made by the High Court and that the appropriate court to make such amendment is the High Court, in circumstances where Taculla appeared to have refused the letter of consent required by O.28, r.11(a). Dunnes further maintained that the amendment to reinstate the correct date of perfection was necessary to avoid potential confusion, as there were different copies of the same High Court order in circulation with different dates of perfection marked thereon. Taculla submitted that the 'slip rule' (O.28, r.11, RSC) (i) has no application as the perfection of court orders is a matter for the registrar, not for the court, (ii) has no application to the date that appears on an order, (iii) even if it can be applied to the date that appears on a court order, has no application to the circumstances at hand because what occurred was not a 'clerical mistake' or an "error arising from an accidental slip or omission" but something deliberately done by the Registrar, and (iv) in any event matters should be left to the Court of Appeal.

Held by Barrett J that Taculla is solely and exclusively to blame for the fact that it did not bring its appeal on time. Barrett J held that the judge in court is and must be the ultimate master of court proceedings from the very commencement of proceedings, right through to the perfection of orders and (in the instances contemplated by O.28, r.11 and as elaborated upon by case-law) even beyond the point of perfection. Barrett J held that there is nothing in the express text of O.28, r.11 which suggests that it does not extend to the whole body of a court order Barrett J held that the registrar's re-dating of the perfected order so that it referred to 11th April, 2018 was clearly an error arising from the fact of her original slip or omission in naming the wrong firms of solicitors in the original order as perfected on 13th March, 2018. Barrett J, having noted that there were different copies of the same High Court order in circulation with different dates of perfection marked thereon, held that it was entirely logical and in the interest of the administration of justice that the court should remedy this difficulty. Barrett J held that such amendments as had been sought of the court by Dunnes did not in any way prejudice Taculla.

Barrett J held that the court would grant an order pursuant to O.28, r.11, RSC (i) amending an error made in the order of the court made on 13th March 2018, so as to reflect the correct date of perfection of the said order (being 13th March, 2018 and not 11th April, 2018), and (ii) correcting the name of the solicitors for Dunnes to read 'William Fry' instead of 'Beauchamps'.

Application granted.

JUDGMENT of Mr Justice Max Barrett delivered on 12th June, 2018.

I

Overview

1 When an order is made by the High Court, the substance of that order is recorded by a registrar who subsequently draws up a written order dated, pursuant to O.115, r.1, RSC, as of the date when the order is made. Once the order has been drawn up, signed by the registrar and particulars entered into the books of the High Court, it is regarded as having been passed and perfected. This passing and perfection of orders, again pursuant to O.115, r.1, RSC, must be done ' with all convenient speed'. As part of the process of being passed and perfected, a High Court order is indorsed with a date of perfection. This indorsement is important as the period for appeal is measured from the date of perfection. It is, however, inevitable in a human-administered system of justice that, from time to time, administrative mistakes will occur, resulting in an error on the face of an order. This reality is acknowledged in O. 28, r.11, RSC (the so-called "slip rule"), which provides as follows:

'Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected without an appeal –

(a) where the parties consent, and with the approval of the court, by the registrar to the court,

(i) on the application to the registrar in writing of any party, to which a letter of consent to the correction from each party shall be attached or

(ii) on receipt by the registrar of letters of consent from each party; or

(b) where the parties do not consent, by the court,

(i) on application made to the court by motion on notice to the other party or

(ii) on the listing of the proceeding before the court by the registrar on notice to each party.'

2 The scope of the jurisdiction afforded by O. 28, r.11, RSC is notably limited. It cannot be used to alter the effect of a judgment with the benefit of hindsight. The within application is essentially concerned with the issue whether (1) where a perfected order of the High Court containing errors is amended by a registrar without (i) the consent of the parties or (ii) an order of the court ordering correction (so other than in accordance with O. 28, r.11), (2) that perfected order is given a new, later date of perfection (being the date of the amendment), and (3) the effect of (2) is to enable a party to lodge an appeal against the order of the High Court which (a) on the face of the amended order is within time, but (b) having regard to the original date of perfection is out of time, the court may order, inter alia, the substitution of the original date of perfection within the re-perfected order.

II

Factual Background

3 In the within proceedings, Dunnes Stores seeks relief under s.160 of the Planning and Development Act 2000 in respect of an unauthorised development carried out at and on the public road in front of a licensed premises known as Harry's on the Green, which is situate in the Stephen's Green Shopping Centre at South King Street, Dublin. Taculla is the lessee and licensee of Harry's. Dunnes is a prominent retailer and operates a department store in the Stephen's Green Shopping Centre.

4 On 21st November, 2017, the court set 13th and 14th March, 2018, as the dates for the hearing of the within application and gave directions regarding the filing of submissions. Taculla was represented by counsel in court on 21st November and raised no issue concerning the filing of any additional affidavits. In fact, the last affidavits filed in the case had been those of Taculla and were served on 31st July, 2015, in advance of an interlocutory application being heard on that date, following which hearing Taculla, through its directors, gave certain undertakings to the court.

5 On 27th February, 2018, Taculla's current solicitors filed a notice of change of solicitors, replacing the firm of Kevin Tunney, Solicitors, which had in turn replaced the firm of Freehill Solicitors as Taculla's solicitors in the proceedings. The notice of change of solicitor was served on 5th March, 2018.

6 On 12th March, 2018 – the day before the long-scheduled hearing date and months after directions had been given – Taculla's solicitors, at about 1 p.m., served three additional affidavits raising substantial issues, these affidavits having been sworn by a director of Taculla, a planning consultant and a director of the former lessee of the premises.

7 Having considered the new affidavit evidence furnished by Taculla's solicitors, Dunnes was advised by its advisors that the matters therein required a response and that the case could not proceed on the allotted hearing-days. Consequently, on 13th March, 2018, counsel for Dunnes drew this Court's attention to what had occurred, pointed out that the late delivery of the affidavits made it impossible for Dunnes to proceed with the case and sought an adjournment on the basis that the court would make a wasted costs order.

8 Before continuing with the chronology of events, it is worth noting certain aspects/consequences of the late-furnishing of the affidavit evidence. Court time was wasted in reading papers. One or more other cases could have been advance-scheduled for the designated hearing dates. The time of Dunnes and its advisors was to some extent wasted preparing for a case that had been pleaded on one basis and which, at the last moment, took a different turn. The fact that there was a change of solicitor, scant days before a long-scheduled hearing, has not been entirely explained. Nor is it clear why, when the additional affidavits were in contemplation and preparation, opposing counsel (and the court) could not have been, and were not, told that the long-arranged hearing dates would need to be re-scheduled. As it happens, from the court's (and hence taxpayer's) perspective, the wastage arising from the unexpected adjournment was mitigated by the fact that the court was able to arrange to hear other cases. However, it was just good fortune that this was so; there was no...