Supreme Court dismisses appeal allowing amendment of notice to reflect actual High Court judgment on negligence.

THE SUPREME COURT

Record No: 33/01

Murphy, J.

Murray, J.

Fennelly, J.

BETWEEN

MICHAEL COLIN GEOFFREY McMULLEN

Plaintiff/Appellant

AND

NOEL CLANCY

Defendants/Respondent

Judgment delivered the 31st day of July, 2002 by Murray, J.

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 The 1999 order was originally made by Mrs Justice McGuinness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 upon 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.

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 that appeal and any reference

which I make to that judgment and order is for the purpose of placing in context the nature and purpose of the present appeal.

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.

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

shorthand writer

Whereupon and on reading the Plenary Summons and Pleadings herein and the documents adduced in evidence and upon

hearing the oral evidence of the witnesses whose names are set forth in the Schedule hereto and on hearing said

Counsel respectively

The Court was pleased to reserve its Judgment

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

person

The Court doth

Find that the Defendant was negligent

IT IS ORDERED that he Plaintiff’s claim be dismissed

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

costs

ASSISTANT REGISTRAR

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 January 2001

And upon 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 upon hearing

said Counsel and the Plaintiff in person

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: -

(1) by deleting the words “The Court doth find that the Defendant was negligent” in the third and second last lines

on page 1 thereof

(2) by adding after the word “dismissed” in the last line on page 1 thereof the words “for the reasons set out in

the Judgmentof the Court herein delivered and in accordance with the terms of that Judgment”

And the Court doth make no Order as to the costs of this Motion

ASSISTANT REGISTRAR”

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 together with 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.

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 of same.

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 was negligent.”

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 my judgment.” 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.

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 a written 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.

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

to costs.

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

order.

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.

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

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.

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

The Appellant first of all submitted that there was no clerical mistake or accidental slip in the order of 3rd September, 1999. The

order is clear and unambiguous as to the finding of negligence against the Respondent. Moreover there were ample “criticisms”,

as the Appellant put it in his grounds of appeal, of the Respondent in the judgment of McGuinness, J. to justify a finding of

negligence.

Secondly, the Appellant relied on the long delay between the making of the original order and the application for its amendment

by the Respondent as disentitling or estopping him from seeking such an amendment. He submitted that the Respondent had

acquiesced to the terms and finality of the said order by reason of such delay. This was particularly so in the light of his Notice

of Appeal which made specific reference to the finding of negligence, the various occasions on which the matter was

subsequently before the High Court when he expressly referred to the finding of negligence in the order, the fact of the matter

was mentioned three times before the Supreme Court. During all of this time when the proceedings had, for other reasons, come

before the High Court (and the Supreme Court for the purpose of fixing a date for the appeal in the substantive proceedings),

the Appellant’s books of appeal had been lodged, the Respondent’s Notice of Appeal served and the written submissions of the

Appellant in the substantive appeal also served, the Respondent knew or must have been aware of the finding of negligence in

the 1999 order but did nothing about it until a few days before the appeal in the substantive proceedings had being listed for

hearing before the Supreme Court. In the meantime the Appellant at all times acted in reliance on the validity of the September,

1999 order and processed his appeal accordingly. He had also sent copies of the original order to various parties including the

Law Society, the Bar Council, and the European Court of Human Rights. In support of his argument the Appellant relied, inter

alia, on an Australian case, Chamberlain -v- Deputy Commissioner of Taxation [1991] 28 FCR21 where an attempt by the

Commissioner to set aside a consent judgment because he had mistakenly consented to judgment for the wrong amount was

rejected on the grounds that the claim was res judicata; a United States case, Bloomfield Village District -v- O’Keefe (119F.2.d

157) which concerned a recital in a municipal bond; and Pickard -v- Sears [1837] 6 A.&E. 469 which concerned an estoppel in

the case of a Plaintiff who sought to recover property where the Defendant alleged that he, the Plaintiff, had consented to the

sale of the property by a third party to the Defendant in the first place.

Insofar as the Respondent relied on the authority of Belville Holdings -v- Revenue Commissioner [1994] I.L.R.M. 29 in support of

his contention that the learned High Court Judge acted properly and within jurisdiction in amending the order in question, that

case should be treated as inapplicable to the circumstances of this particular case. It was one in which was made without the

bringing of a motion to do so and by tacit agreement between the parties, which is not the case here.

The Appellant also raised a question concerning the capacity of Mrs Justice McGuinness to adjudicate on the application to

amend the order. Mrs Justice McGuinness had been appointed a member of the Supreme Court in February, 2000 and

accordingly at the time when the order appealed against was made she was no longer a member of the High Court. He

submitted that she had no capacity to make the High Court order.

In response to the submissions of the Respondent, the Appellant submitted that even if there was an error in the order capable

of correction pursuant to order 28, rule 11 he would be prejudiced by an amendment of the order because he had lodged and

progressed his appeal on the basis of that order. He had also sent that order to the various other parties already referred to.

Submissions of the Respondent

Counsel for the Respondent submitted that the judgment and order must be read together. It is clear from the judgment that

there was no finding of negligence against the Respondent. There was clearly an error in the order of September, 3rd 1999

insofar as it purported to make a finding of negligence against the Respondent. Counsel acknowledged that there was a delay

and this matter which could have been addressed when these proceedings were before the learned High Court Judge on

October 12th, 1999 although the court was then dealing with an application by the Applicant to admit new evidence. His

fundamental proposition however was that acquiescence and delay cannot deprive the court of its power or jurisdiction to

amend its order. It may affect how the court exercises its discretion to do so particularly if there is prejudice or detriment to

the other party. For the Appellant to succeed it is essential that he demonstrates prejudice and there is no evidence that he

has suffered prejudice or acted to his detriment. The order in question contained no benefit for him, his action was dismissed.

There is no cause of action for a finding of negligence without damage. In any event if he could be considered to have suffered

prejudice or detriment, it is one that can be readily remedied by an amendment of his Notice of Appeal and further written

submissions to address the matters which are really in issue on foot of the judgment of the High Court. He acknowledged that in

those circumstances any costs incurred in amending the Notice of Appeal and taking any other further steps should be borne by

the Respondent. He further submitted that there is an inherent undesirability of a court order remaining on the record which

does not reflect the judgment made. There is a public interest that such an order be corrected even if it is on terms as to

costs. The jurisdiction of the court to correct an erroneous order was set out in Belville Holdings -v- The Revenue

Commissioners and stated principles which are clearly of general application and not confined to the circumstances of the

particular case.

Decision

In Belville Holdings -v- Revenue Commissioners (cited above) Finlay, C.J. considered the circumstances in which a final order of

a court may, in common law, be interfered with. He cited with approval the opinions expressed In Re Swire (30 ChD 239) in

which Romer J. cited from the judgments in Ainsworth -v- Wilding [1896] 1 Ch 673 which were as follows:

“Cotton LJ says: ‘It is only in special circumstances that the court will interfere with an order which has been passed and

entered, except in cases of a mere slip or verbal inaccuracy, yet in my opinion the court has jurisdiction over its own records,

and if it finds that the order as passed and entered contains an adjudication upon that which the court in fact has never

adjudicated upon, then, in my opinion, it has jurisdiction, which it will in a proper case exercise, to correct its record, that it

may be in accordance with the order really pronounced.’

Lindley LJ says: ‘If it is once made out that the order, whether passed and entered or not, does not express the order

actually made, the court has ample jurisdiction to set that right, whether it arises from a clerical slip or no.’

And Bowen LJ says: ‘An order, as it seems to me, even when passed and entered, may be amended by the court so as

to carry out the intention and express the meaning of the court at the time when the order was made, provided the

amendment be made without injustice or on terms which preclude injustice.’”

Having cited the above passage, Finlay C.J. went on to state “I am satisfied that these expressions of opinion validly represent

what the true common law principle is concerning this question.”

Hamilton, C.J. cited with approval the judgment of Finlay C.J. in that case in In Re Greendale Developments Ltd (No. 3) 2000 2

I.R. 514 at 527 and summed up its effect as follows: “... it set out in detail the common law principle concerning [this]

question holding that where a final order has been made and perfected it can only be interfered with: -

(1) In special or unusual circumstances, or

(2) Where there has been an accidental slip in the judgment as drawn up or

(3) Where the court itself finds that the judgment as drawn up does not correctly state what the court actually decided

and intended.”

These principles were also cited with approval in the judgment of the court which I delivered in P-v-P (The Supreme Court,

unreported, 31st July, 2001).

Order 28, rule 11 (cited above) is an express jurisdiction of the court to correct mistakes or errors in an order of the High Court

which would otherwise be final and is no doubt a reflection, at least in part, of the inherent common law jurisdiction of the

courts to do so.

The Appellant is correct in stating that there is no ambiguity as to the finding of negligence in the September 1999 order

although there would certainly appear to be an anomaly given that the proceedings against the Respondent were dismissed.

However, that is not the point, the question before McGuinness, J. was whether there had been a mistake or error to which the

criteria referred to above applied.

On this question, when McGuinness J. made the order which is the subject of this appeal, she had regard to the reserved

judgment which she delivered on the 3rd September, 1999 and the order subsequently drawn up on foot of it. On any reading of

the judgment of the High Court it is manifest that the Appellant’s claim of negligence against the Respondent was clearly and

unequivocally rejected, first of all on the grounds that it was statute barred and secondly, although it was not strictly

necessary to do so, on the grounds that even if there had been negligence, no damage to the Appellant did or could have

flowed from it. Consequently no claim in negligence could be sustained. Certainly there were criticisms made of the Respondent

in the judgment but none of these amounted in any sense to a finding of negligence. It is equally manifest therefore that the

recital as to a finding of negligence against the Respondent in the formal judgment, in the sense of the order of the court as

drawn up, was a mistake and an error. The order unambiguously states there was a finding of negligence in complete conflict

with an unambiguous rejection in the judgment of the claim founded on negligence. In short the order drawn up did not

correctly state what the court actually decided and intended.

There is no scope for misunderstanding the decision and its intent on this point. One could hardly have a more obvious error of

this nature and clearly there was a slip or mistake in the drawing up of the order. In the reasons given for her decision to amend

the order McGuinness J. properly distinguished between the situation where the merits of a case may not be reopened after

final judgment and order and the exercise of the jurisdiction of the court to correct such an error in the order. In correcting the

error she took into account the relevant factors referred to above and on that basis she was perfectly entitled to make the

amending order which she did.

Estoppel

The next basis on which the Appellant appeals against the order of the High Court relates to the delay and inaction on the part

of the Respondent in bringing his application to amend the order. All of this he submits amounts to acquiescence on the part of

the Respondent to the order and estops him from asking the court to exercise its jurisdiction to amend the order. In the

alternative the Appellant has submitted that because he has suffered prejudice as a result of the delay, the High Court wrongly

exercised it’s discretion to make the order in question. That is a separate matter which I will consider later.

Firstly, for a range of reasons I do not think that the question of estoppel arises in this matter at all. There is a fundamental

public interest in the due administration of justice which requires that the order of a court accord with what the court has

decided and that the decision of a court should not be thwarted by an accidental slip or error or clerical mistake. This is

undoubtedly why the courts have, after the making of a final order, very exceptionally and in the defined circumstances to

which I have referred, an inherent as well as an express (in the case of Order 28, rule 11) jurisdiction to amend it’s final order.

As Sir Peter O’Brien, Chief Justice, stated in the then Court of Appeal on this very question “The administration of the law is not

so imbecile that accidental mistakes in decrees must be allowed to remain operative in them to the prejudice of what is right

and just.” (In re Knipe’s Estate 27. L.Rep.I.512). It seems to me in the public interest and in the interest of the due

administration of justice that the High Court at all times retains its jurisdiction to amend its own orders where, due to accidental

error, they do not correctly state what the court actually decided. Consistent with these considerations it is noteworthy that

order 28, rule 11 expressly provides that such errors or mistakes “may at any time be corrected by the court ...” (emphasis

added). Undoubtedly the jurisdiction of the court is a discretionary one and it may in the exercise of that discretion refuse to

amend an order if it would be inequitable to do so. This is a matter which I will come to later but it is entirely different from

saying that it can be estopped from exercising its jurisdiction at all solely by reason of delay or inaction of one of the parties. In

my view the doctrine of estoppel cannot be invoked to oust the jurisdiction of the court to exercise control over its own orders.

The court’s attention has not been drawn to any case in which estoppel has ever been invoked as a ground for not exercising

its jurisdiction in the face of significant delay in a matter of this nature and I am not aware of any such case. Halsbury (3rd

edition, vol. 22) having noted that an application for such an order may be made at any time cites two cases in which such an

order was made after a lapse of 19 years (Shipwright -v- Clements [1890] W.N. 134) and 33 years (Hatton -v- Harris [1892]

A.C.547). In the latter case the House of Lords affirmed the decision of the Court of Appeal in Ireland in In re Knipe’s Estate

(cited above) and Lord Herschell stated “... that there may possibly be cases in which an application to correct an error of this

description would be too late,” but this was not because of any question of estoppel but because of possible prejudice making

it unjust to do so. In Cregan -v- Rafter (Ir. Jur.Rep. 1940 80) Maguire P. having expressed his reluctance to make an order

pursuant to order 28, rule 11 because of a delay of almost one year stated “notwithstanding the delay I feel that I should follow

the reasoning of Farewell, J. in Picton -v- Picton and not allow an abortive order to defeat my decision.” That of course was

the exercise of a discretion in the circumstances of the particular case except that it underscores the principle that the

exercise of that inherent jurisdiction should not be ousted by the doctrine of an estoppel arising from the conduct or delay of

one of the parties to the proceeding.

In any event I am not convinced that the conduct of the Respondent referred to by the Appellant is capable of giving rise to

estoppel. The issue between the parties with which the court is now concerned arose not because of any act of the

Respondent but because of an accidental slip or error in the order made in the High Court. It was not the act of the Respondent

which could have misled or induced the Appellant to appeal on foot of the erroneous order shortly after the perfection of the

order. Moreover, the Appellant was presumably present in court when the judgment of the High Court was delivered and in any

event undoubtedly had a full copy of the reserved judgment and the order before he lodged his notice of appeal on the 29th

September, a little over 3 weeks after the delivery of the judgment. This is not a case in which there was some omission on a

narrow point of details such as provision for costs. There was a manifest and patent conflict between the judgment and the

order on the specific point of the Defendants negligence and the Appellant must or ought to have been aware himself of that

conflict. He is a lay litigant, although an experienced one, and it has been very evident that he has conducted this case with

laborious attention to detail and with precision. Perhaps as a lay litigant he felt entitled to rely on and profit from the form of

the order in which it stood for the purposes of his appeal, but that does not take away from the fact that it seems

inconceivable that he would not have been aware of the conflict between the two. Independent of that factor he did, as I say,

lodge his appeal on the 29th September, 1999 relying on the form of the order and even the Appellant has not criticised the

Respondent for not making an application to amend the order in question before the matter was listed for dealing with the

question of costs on October, 5th. His appeal still stands as having being made on the basis of the order as made on the 3rd

September, 1999. That, decision was, as I have mentioned, induced by the error made in the making of the order and not by

any act of the Respondent. In other words the delay and inaction of the Respondent (who obviously has not profited from the

error) did not mislead him as to the correctness of the order but rather whether they were concerned to challenge its

correctness. That to me seems to give rise to considerations of equity as between the parties rather than estoppel. The

application of the corresponding rule in Northern Ireland was considered by Lord Lowry LCJ in McNichol -v- Neeley [1983] N.I.

43) in which he stated “the words “at any time” in order 20, rule 11 mean what they say, and the only qualification to be

place upon them is dictated by the requirements of fairness and not by any absence of jurisdiction in the court.” (my

emphasis). I consider that same principle applies in this jurisdiction.

All the authorities demonstrate that when an issue has arisen concerning delay between the making of an order and the

application to correct the order it has been determined on the basis of whether it would be inequitable to make the order

because of irremediable prejudice and not on the question of estoppel. It is also a requirement for the application of a doctrine

of estoppel that the person invoking it should have suffered such prejudice. However, I propose to deal with the question of

prejudice to the Appellant in the next part of my judgment. I would just add that the case-law cited by the Appellant

concerning his estoppel submission relate to issues quite different to those which arise in this case and I do not consider them

to be relevant to these considerations.

Undue delay and prejudice

That there was undue delay on the part of the Respondent in applying to have the order correct cannot be contested. The

Appellant was entitled be critical in that regard and Counsel for the Respondent quite frankly and properly acknowledged that

the application could have and ought to have been made earlier. However, that delay has to be looked at in the light of the

circumstances of the case and any consequences which flow from it. First of all there is the question of the principles to be

applied. As I have already indicated the inherent and express jurisdiction of the courts to correct, in particular circumstances,

orders which would otherwise be final serves the public interest and the due administration of justice. It is however axiomatic to

say that in making any order a court may have regard to the rights and interest of persons affected by the order. In the case

of an order pursuant to order 28, rule 11, delay in seeking to have the order corrected may give rise to changed circumstances

from the time when the application ought to have made which may in turn be prejudicial to other parties, including third parties.

The statement of Lord Herschell in Hatton -v- Harris that delay could, in certain circumstances, give rise to grounds for refusing

an application to correct an error was explained by him when he went on to say “The right of third parties may have

intervened based upon the existence of the decree and ignorance of any circumstances which would tend to shew that it was

erroneous, so as to disentitle the parties to the suit or those interested in it to come at so late a period and ask for the

correction to be made. There might be a ground of that description which would induce the tribunal to say: “No; although this

is a slip and one which would have been corrected at the time, you have delayed so long that you have allowed rights to grow

which it would now be unjust to prejudice, and it is impossible to make the correction.” Earlier in this judgment I also cited the

statement of Lord Lowry L.C.J. to the effect that the only qualification to be placed on the words “at any time” in Order 20,

rule 11 was that which would be “dictated by the requirements of fairness”. In that case he went on to allow an amendment

pursuant to the said Order on the grounds that the facts of the case did not “indicate such a change of circumstances as

would cause the court to regard the proposed amendment as inequitable.” It is also perhaps worth noting that Halsbury (4th

edition, vol. 27) states “The court may decline to correct its order or judgment under this provision (a precisely corresponding

provision in English rules) but undue delay is not itself a ground for doing so.” Halsbury in its 3rd edition (vol. 22 788) contains

the statement in relation to the same Order “Any party may apply. It should be made as soon as the mistake is discovered;

but it may be made at any time, and the amendments have been allowed after the lapse of a considerable number of years,

and it is no objection that the time for appealing against the order or judgment has expired.” A number of the cases which I

have cited support that view and in particular the two cases in which an order correcting an error was made nineteen years and

thirty three years respectively after the making of the original order.

On the question of delay, therefore, I am of the view that undue delay is not in itself a bar to the making of an order pursuant

to Order 28, rule 11. It is entirely logical and in the interest of the administration of justice that this should be so. All the court

is doing is giving effect to the actual decision which it is made. Any other approach would be, in the words of O’Brien L.C.J.

above “... to the prejudice of what is right and just.”

In the light of the case law which I have cited I come to the following conclusions. Even where there has been undue delay in

the making of an application to correct an order pursuant to order 28, rule 11 this in itself is not a ground for refusing the order

unless it would be inequitable to do so because it would prejudice the rights of other parties in the proceedings or rights which

had been acquired by third parties in the meantime. A primary consideration is that it is in the interest of justice that effect to

be given to the true decision of the court. Where there is an ostensible prejudice the order may be made if it may be made on

terms which remedy or preclude that prejudice. My conclusion is reinforced by the words of Bowen L.J., cited with approval by

this court that an order maybe amended if that can be done “on terms which preclude injustice.”

The Appellant says he has been prejudiced because he lodged his Notice of Appeal, on the basis of the order as made on

September 3rd, 1999 and furthermore he has provided his written submissions on that basis. He added one further element of

claim to prejudice namely that he had circulated the order in question to the Law Society, the Bar Counsel and the European

Court of Human Rights. Just to deal with this latter point first it must be said that such circulation has no legal or practical

consequences. The order in question is addressed to the parties and binds no other party. I would add in passing that the order

properly recorded that the Appellant’s action had been dismissed and if the erroneous finding of negligence against the

Respondent as recited in that order was of prejudice it would have been to the Respondent.

As regards the other prejudice of which the Appellant complains, I would first of all note that I have already found that the

order of September 3rd, 1999 was manifestly erroneous. The Appellant is entitled to appeal the decision of the High Court. That

is to say its true decision. What the Appellant submits is that even if the order is erroneous he would prejudiced if it is amended

to accord with the true decision of the court. He seeks to profit from an accidental error in the order made up on September

3rd, 1999. He would wish this court to deal with the appeal on the basis of a manifestly erroneous order. In this he is wrong.

Amending an order of the court of first instance so that it states the true decision of that court and so that the appeal is dealt

with on the basis of that decision cannot be described as prejudicial to the Appellant.

If the amendment made by the High Court is allowed to stand the Appellant would be in the same position as if it had been

correctly made in the first place or if it had been amended on foot of a prompt application by the Respondent. The Appellant

should of course have leave to amend his Notice of Appeal and his submissions accordingly (a matter which had been canvassed

by the parties at the hearing of this appeal). This will preserve in full his right to proceed with the appeal in respect of all

issues, including the rejection of his claim based on negligence, on the basis of the actual decision of the High Court. Clearly no

third party rights have been prejudiced and in those circumstances neither will any rights of the Appellant be prejudiced.

Accordingly, I do not consider there are any equitable reasons for allowing the Appellants appeal on this point. Justice requires

that this court adjudicates on the true issues between the parties and not on a manifestly erroneous order. This to my mind is a

classic case in which an amending order should be made so as to ensure that the appeal in the substantive proceedings is heard

on the basis of what the High Court actually decided.

I would just add one further observation in the light of another citation from O’Brien C.J. in In re Knipe’s Estate when he in turn

quoted from another case in which an order which was clearly erroneous came before a court of appeal without correction.

“The Lord Chancellor Sir Edward Sugden in giving judgment said: -

‘I do not understand the rule to be that this court is bound to carry into execution an erroneous decree - on the

contrary, I apprehend that when a party comes into this court asking for the benefit of a former decree, he must be

prepared, if the case requires it, to show that the former decree was right.’ And later in his judgment he said:- ‘It is

true that as the case now comes before the court, I cannot order the decree to be amended, but I am not bound to

carry on or perpetrate error.’” In the same case Fitzgibbon L.J. stated “...I should decline to act on a decision which

confessedly gave conclusive effect to what was ‘probably an accidental slip of the party,’ or rather of the official of the

court...” In the light of those observations it may well be in ease of the Appellant that he is permitted to amend his

Notice of Appeal so as to proceed with his appeal on the basis of the actual decision of the High Court rather than on the

basis of a manifestly erroneous order.

Judicial Status

Finally, the Appellant has asserted that since Mrs Justice McGuinness was at the time a member of the Supreme Court she was

not entitled to sit in the High Court to adjudicate on this matter. This issue was not raised in the High Court and thus there is

nothing in the book of appeal, including the transcript, which contributes any factual or material element to it. The Court does

have judicial knowledge of the longstanding practice, consented to by successive Presidents of the High Court and Chief

Justices to the present day, that Judges of the High Court who are appointed to the Supreme Court sit in the High Court to deal

with matters arising from proceedings in which they were the trial judge. Wylie’s Judicature Acts also points out, in relation to

Order 28, rule 12, that an application pursuant to that order should be made to the judge who made the original order (Tucker -

v- New Brunswick Co. 44 Ch. D 249). Section 2, subsection 5 of the Courts (Establishment and Constitution) Act, 1961

(replacing Section 5 of the Courts of Justice Act 1936) makes provision for a Supreme Court judge to sit in the High Court as an

additional judge thereof. Under that subsection a judge of the Supreme Court sit as a judge of the High Court with the approval

of the President and the Chief Justice in various circumstances including if “it is expedient to increase temporarily the number

of judges available for the purposes of the High Court...”. Since what was in issue in this case was an order made on foot of a

High Court judgment delivered by Mrs Justice McGuinness, she, in principle, was the appropriate judge to deal with this High

Court matter and it clearly would have been expedient for the High Court that she should do so. There is no element

whatsoever before the court to suggest that she was acting other than properly when she sat to hear this application. In

addition, it seems to me that in the absence of any factual or other element furnished in regard to this matter, other than an

assertion by the Appellant, the common law maxim omnia praesuntur rite esse acta applies. Referring to this maxim Pollock,

C.B. in Gibson -v- Doeg [1857], 2 H. & N. 615 stated “It is a maxim of the law... to give effect to everything to which appears

to have been established for a considerable course of time, and to presume that what has been done was done of right, and

not in wrong.” In short there is nothing in the Appellant’s assertion which could found a conclusion that Mrs Justice McGuinness

was not entitled to sit in the High Court on the occasion in question. I consider this point to be without merit.

In the light of the foregoing conclusions the Appellant’s appeal should be dismissed. An appropriate order should be made

entitling him to amend his Notice of Appeal in the substantive proceedings and liberty given to make such further written

submissions as he deems appropriate. The Respondent to have liberty to reply to any such submissions.