McMullen v Clancy

• Jurisdiction: Ireland
• Judge: Murray, J.
• Judgment Date: 31 July 2002
• Neutral Citation: [2002] IESC 61
• Court: Supreme Court
• Docket Number: [S.C. No. 33 of 2001]
• Date: 31 July 2002

McMULLEN v. CLANCY

BETWEEN

MICHAEL COLIN GEOFFREY McMULLEN

Plaintiff/Appellant

AND

NOEL CLANCY

Defendants/Respondent

[2002] IESC 61

Murphy, J.

Murray, J.

Fennelly, J.

Record No: 33/01

THE SUPREME COURT

Synopsis:

PRACTICE AND PROCEDURE

Jurisdiction

Amendment of court order - Delay - Estoppel - Negligence - Whether High Court empowered to amend original order - Whether delay bar to granting amendment - Rules of the Superior Courts, 1986 ( 33/2001 - Supreme Court - 31/7/2002)

McMullen v Clancy - [2002] 3 IR 493

Facts: The plaintiff's original proceedings against the defendant alleging negligence had been dismissed. In the High Court order it was stated that the defendant was negligent and that the plaintiff's claim be dismissed. Subsequently an application was brought by the defendant seeking to have the order amended by the deletion of the words 'that the defendant was negligent'. In the High Court McGuinness J, who had originally heard the case, granted the order sought. The plaintiff appealed against this order on the basis that the original order was clear and unambiguous in that there was a finding of negligence made against the defendant. It was also contended that that there was a long delay by the defendant in seeking to amend the order and thus the defendant should be estopped from seeking relief. In addition it was argued that the plaintiff had relied upon the order in question, had based his substantive appeal on the original order and therefore was prejudiced by the amendment.

Held by the Supreme Court (Murray J delivering judgment; Murphy J and Fennelly J agreeing) in dismissing the appeal. On any reading of the original High Court judgment the claim of negligence made against the defendant had been dismissed. A recital of a finding of negligence in the court order was therefore a mistake and an error. The original order as drawn up did not correctly state what the High Court had decided. The issue of estoppel did not arise as there was a public interest in the due administration of justice that the High Court retain its jurisdiction to amend its own orders when they did not correctly state what the court actually decided. Although there was undue delay by the defendant in seeking to have the order amended it was not a bar to the making of an order pursuant to Order 28, rule 11 of the rules of the Superior Courts, 1986.

1 31st day of July, 2002byMurray, J.

Murray, J.

2 This is an appeal from an order of Mrs Justice McGuinness, sitting as a judge of the High Court, of the 29th day of January, 2001 made pursuant to the provisions of Order 28 rule 11 of the Rules of the Superior Courts amending an earlier order made in these proceedings on the 3rd day of September, 1999. The 1999 order was originally made by Mrs Justice McGuinness consequent up on the judgment which she had delivered after the trial of an action in July, 1999 between the Plaintiff/Appellant (hereafter the Appellant) and the Defendant/Respondent (hereafter the Respondent) Which was heard before her as a judge of the High Court.

3 In her judgment and order dated 3rd September, 1999, Mrs Justice McGuinness dismissed the Appellant's claim in those proceedings (the substantive proceedings). That judgment and order is the subject of a separate appeal still pending before this court which has been lodged by the Appellant. This matter is not concerned with the merits of thatappealand any reference which I make to that judgment and order is for the purpose of placing in context the nature and purpose of the presentappeal.

4 The order of the High Court dated 3rd day of September, 1999 was as follows (with emphasis added):-

"This Action having been at hearing on the 22nd 23rd 27th and 28th days of July 1999 in presence of the Plaintiff in person and Counsel for the Defendant."

5 On the Application of Counsel for the Defendant IT WAS ORDERED that the proceedings herein be reported by a shorthand writer

6 Whereupon and on reading the Plenary Summons and Pleadings herein and the documents adduced in evidence and up on hearing the oral evidence of the witnesses whose names are set forth in the Schedule hereto and on hearing said Counsel respectively

7 The Court was pleased to reserve its Judgment

8 And same coming unto the List this day for Judgment in the Presence of Counsel for the Defendant and the Plaintiff in person

9 The Court doth

10 Find that the Defendant was negligent

11 IT IS ORDERED that he Plaintiff's claim bedismissed

12 And IT IS ORDERED that this Action be adjourned to Tuesday the 5th day of October 1999 to deal with the matter of costs

13 ASSISTANT REGISTRAR

14 The Respondent having brought a motion to amend the foregoing order, it was amended by the following order of 29th January, 2001.

"Upon Motion of Counsel for the Defendant made to the Court this day pursuant to Notice of Motion dated the 17th day of January2001"

15 And up on reading the said Notice of Orders made herein dated the 3rd day of September 1999 and the 3rd day of November 1999 the Judgments of this Court delivered herein on the 3rd day of September 1999 and the 3rd day November 1999 and the Affidavit of Thomas M. McEvoy filed herein on the 17th day of January 2001 and up on hearing said Counsel and the Plaintiff in person

16 IT IS ORDERED pursuant to the provisions of Order 28 Rule 11 of the Rules of the Superior Courts that the said Order dated the 3rd day of September 1999 be amended in the following manner:-

17 (1) by deleting the words "The Courts doth find that the Defendant was negligent" in the third and second last line on page 1 thereof

18 (2) by adding after the word "dismissed" in the last line on page 1 thereof the words "for the reasons set out in the Judgment of the Court herein delivered and in accordance with the terms of that Judgment"

19 And the Court doth make no Order as to the costs of thisMotion

20 ASSISTANT REGISTRAR"

21 In this appeal against the latter order, the Appellant, Mr McMullen, has placed a good deal of emphasis on the passage of time between the making of the order in the substantive proceedings on the 3rd September, 1999 and the amending order of 29 January, 2001 togetherwith certain steps that were taken in the meantime in relation to the substantive proceedings while no step was taken to seek an amendment of the order. It would be appropriate, therefore, to summarise what occurred in the interval between the two orders.

22 When Mrs Justice McGuinness delivered her judgment on 3rd September, 1999 she adjourned the question of costs to be awarded to October 5th, 1999 so that the Appellant would have an opportunity to consider the judgment and make submissions on that question in the light ofsame.

23 As the order of 3rd September, 1999 had been perfected in the meantime the Appellant lodged his Notice of Appeal against that order on 28th September, 1999. The first paragraph in the Notice Of Appeal makes reference to the statement in the order of 3rd September, 1999 that "The court doth find that the Defendant wasnegligent."

24 On 5th October, 1999 when the matter was listed before Mrs Justice McGuinness for the purpose of dealing with the question of costs, the Plaintiff sought to give evidence and re-open certain issues in relation to the substantive proceedings. As Mrs. Justice McGuinness was to note when she later came to rule on this application "The Plaintiff pressed his application to give further evidence with some insistence and made reference to a letter which had not been opened to the court during the hearing but which, he said, had been in the possession of the court and to which no reference had been made in myjudgment."

25 Reference was also made by the Appellant to his Notice of Appeal in which that letter was cited. On that occasion, Mrs Justice McGuinness acceded to a request for an adjournment from counsel for the Respondent so that he could consider the application which was then being made by the Appellant. The matter was adjourned to the 12th October, 1999.

26 On the 12th October, 1999 both parties made submissions in relation to the Appellant's application to have the proceedings re-opened. Mrs Justice McGuinness gave awritten ruling on the matter on the 3rd November, 1999 in which she explained how the letter in question had not been considered by her in the substantive proceedings and in particular ruled that since the proceedings had concluded she had no jurisdiction to reopen the matter on the merits and she was functus officio. She also made a ruling that no order for costs would be made in relation to the costs of the substantive proceedings.

27 On 29th November, 1999 the Respondents appealed against the order of the 3rd November, 1999 insofar as it made no order as to costs.

28 On the 9th February, 2000 the Respondent's solicitors first wrote to the registrar of the High Court concerning an error in the order.

29 On 29th June, 2000 the Plaintiff issued a motion for the purpose of applying to the Supreme Court to admit further evidence in his appeal against the order of 3rd September, 1999.

30 In July, 2000 it appears that the hearing of that appeal was fixed for January, 31st 2001.

31 On 17th January, 2001 the Respondents issued their motion seeking to amend the order of 3rd September, 1999 on the grounds that there was an error in that order. Subsequently the amending order of 29th January, 2001 cited above was made.

32 That order was made pursuant to Order 28, rule 11 of the Rules of the Superior Courts 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 by the court on motion without an appeal."

Submissions of the Appellant

33 The Appellant first of all submitted that there was no clerical mistake or accidental slip...