Judgment Title: Bank of Scotland [Ireland] Ltd -v- Mannion & Anor
Composition of Court:
Judgment by: Laffoy J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 419
THE HIGH COURT
2008 571 SP
BANK OF SCOTLAND (IRELAND) LIMITED
TOM (OTHERWISE THOMAS) MANNION AND CORRINE MANNINON
Judgment of Miss Justice Laffoy delivered on the 18th day of November, 2010.
1. The proceedings
1.2 By order of this Court made on 29th April, 2009 by MacMenamin J. it was ordered that the defendants forthwith upon service of the order upon them deliver up to the plaintiff possession of the properties described in the schedule to the special summons, including the lands registered on Folio 32638F, County Galway. The order recited that it was made on the application of counsel for the plaintiff by consent of the parties.
2. The application
(b) In any event, by letter dated 22nd April 2009 directly to the plaintiff’s office in Galway, the defendants’ former solicitors referred to a letter dated 17th April, 2007 from the plaintiff’s solicitors “wherein it is stated that the property at Doughiska be split to exclude the family home”. The defendants’ former solicitors suggested that an amendment of the summons could be applied for when the matter would be before the Court on the following Monday “whereby the family home at Doughiska could be excluded from the list of properties on the Summons”.
(c) On 23rd April, 2009 the defendants’ former solicitors wrote to the plaintiff’s solicitors stating that they still awaited hearing from the plaintiff “in relation to the family home at Doughiska as to whether same is to be excluded from the Order for Possession being sought next Monday”. They referred to the letter of 17th April, 2007. They also enclosed their proposed “Consent to the Order”. The consent was in letter form and was addressed to the plaintiff’s solicitors. In it, the defendants’ former solicitors consented to an order for possession of all the property set out in the schedule to the special summons as amended by Mr. Walzer’s affidavit sworn on 16th April, 2009 “EXCEPTING AND EXCLUDING therefrom the family home situate at Doughiska … being part of Folio 32638F, County Galway as outlined on the map attached hereto”.
(d) The response of the plaintiff’s solicitors in their letter of 24th April, 2009 was that under no circumstances would the plaintiff agree to the exclusion of any part of Folio 32638F, County Galway for the orders for possession being sought on the following Monday. It was stated that the consent furnished was not acceptable on the basis of the exclusion. The defendants’ former solicitors were invited to furnish a consent to the making of all of the orders. It was stated that the plaintiff would be proceeding to seek orders for possession on all of the properties on the following Monday.
(e) By letter dated 24th April, 2009 to the plaintiff’s solicitors the defendants’ former solicitors, in that capacity, consented to an order for possession of all of the properties set out in the schedule to the special summons as amended by Mr. Walzer’s affidavit of 16th April, 2009. It was on foot of that letter that counsel for the plaintiff sought the consent order which was made on 29th April, 2009.
2.3 In his affidavit Mr. Jones has averred that he “never put forward any form of consent for possession of” the disputed property, contrary to what is indicated in the letters of 4th November, 2009 and 7th January, 2010. The second defendant has averred in her grounding affidavit on this application that the letter of consent dated 24th April, 2009 was given “despite [the defendants’] wishes”.
2.4 There is a conflict on the evidence put before the Court by the defendants as to whether the defendants’ former solicitors had authority to consent to an order for possession in relation to the disputed premises. It is a conflict which, as counsel for the defendants acknowledged, the Court cannot resolve on this application. From the perspective of the plaintiff, the defendants’ former solicitors were their agents, being the solicitors on record for them in these proceedings, and in that capacity they gave a clear and unequivocal letter of consent to an order for possession being made in relation to all of the property set out in the schedule to the special summons, including the disputed premises. In my view, the plaintiff is entitled to maintain that position.
2.5 The objective of the defendants in seeking to have the disputed premises excluded from the order of 29th April, 2010 is so that they will have an opportunity to defend the plaintiff’s claim for possession in relation to that property on the ground that the plaintiff does not have security over it. Counsel for the defendants expressed confidence in being able to demonstrate that the plaintiff does not have security over the disputed premises. The plaintiff, on the other hand, contends that it does have security. The resolution of that contest does not arise on this application.
3. The law
3.2 In delivering judgment in the Belville Holdings Ltd. case, Finlay C.J. undoubtedly recognised that there exists a fundamental jurisdiction in a court to amend an order which it has previously made, even though the order is in the form of a final order and has been perfected. While the Supreme Court was unable to identify any Irish authority in point, Finlay C.J. stated that the position and principles appeared to be accurately stated in the judgment of Romer J. in Ainsworth v. Wilding  1 Ch. 673, quoting the following passage at p. 677:
(1) Where there has been an accidental slip in the judgment as drawn up, in which case the court has power to rectify it under O.28, r. 11;
(2) When the court itself finds that the judgment as drawn up does not correctly state what the court actually decided and intended.”
Lindley L.J. 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 not’.
And Bowen L.J. 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’.”
3.4 Delany and McGrath (at paragraph 22-29 et seq.) address another category of special or unusual circumstances in which a court will set aside a final order to protect constitutional rights and they quote the following passage from the judgment of Denham J. (at p. 544) in In re Greendale Developments Ltd. (No. 3)  2 I.R. 514 as a useful summary of the circumstances in which this jurisdiction may be exercised:
4. Application of the law to the facts
4.2 As regards the application of the common law principle identified and applied in the Belville Holdings Ltd. case, it is not the case here that the order of 29th April, 2009 does not correctly state what the Court actually decided and intended. The contrary is the case. The order of the Court reflects the consent as to the making of the order which was furnished to the plaintiff’s solicitors by the defendants’ former solicitors.
4.3 This case is not within the category of most exceptional circumstances in which a court will set aside or vary its final judgment in order to protect constitutional rights and justice and to ensure that a breach of constitutional rights is not perpetrated. In this case, the High Court made a consent order at the request of the plaintiff, which was acting, as it was entitled to do, on the letter of consent from the defendants’ former solicitors, who were on record for the defendants in the proceedings. This is not a case in which the defendants, through no fault of theirs, have been subject to a breach of constitutional rights. On the contrary, if it is the case that the defendants’ former solicitors did not have authority to consent to an order for possession which encompassed the disputed premises, and at the risk of unnecessary repetition it must be pointed out that there is a conflict of evidence on this point, in the inter partes context with which the Court was concerned on 29th April, 2010, the fault of the agent of the defendants, the former solicitors on record for them, must be attributed to the defendants, as counsel for the plaintiff submitted. Accordingly, the jurisdiction which the Supreme Court recognised in In re Greendale Developments (No. 3) is not applicable in this case.
4.4 In requesting the Court to make the consent order, which included the disputed premises, counsel for the plaintiff acted on the letter of 24th April, 2009 from the solicitors on record for the defendants, that is to say, the defendants’ former solicitors. It is beyond doubt that this is not a case in which there was a conscious and deliberate dishonesty in obtaining the Court order. The conduct of the plaintiff is unimpeachable, even if it is the case that the defendants’ former solicitors did not have authority to consent to an order for possession in relation to the disputed premises.
4.5 In summary, the Court has no jurisdiction whatsoever to vary the order of 29th April, 2009 and this application is wholly misconceived. It would be inappropriate to address and I express no opinion on the submission made by counsel for the defendants that, were they to bring a separate action against the plaintiff to set aside the agreement underlying the order of 29th April, 2010, they would be met with a plea of res judicata, which, as was made clear by its counsel, the plaintiff would seek to rely on. That scenario is entirely hypothetical.