Judgment Title: Simon J Kelly & Partners -v- Tony Dixon & Anor
Neutral Citation:  IEHC 522
High Court Record Number: 2002 95 SP
Date of Delivery: 03/12/2012
Court: High Court
Composition of Court:
Judgment by: Laffoy J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 522
THE HIGH COURT
[2002 No. 95 SP]
IN THE MATTER OF THE ARBITRATION ACTS 1954 – 1988
SIMON J. KELLY & PARTNERS
TONY DIXON AND TINA DIXON
Judgment of Ms. Justice Laffoy delivered on 3rd day of December, 2012.
The application in the context of the proceedings
2. What is significant about the perfected order of 13th May, 2002 is that it did not include, as is usually included in such an order enforcing an arbitration award, an express order that the plaintiff do recover against the defendant the amount due on the award, that is to say, the sum of €47,264.38. The reality, therefore, is that judgment was never entered in the terms of the award, that is to say, for the total amount awarded to the plaintiff in the arbitration. Nonetheless, on 7th November, 2006 the plaintiff secured the registration of a judgment mortgage as a burden on the lands registered on Folio 21952F of the Register of Freeholders, County Galway, of which Anthony Dixon, being, presumably, the first defendant, was the registered owner, on the basis of the order of 13th May, 2002. It was recorded on the folio that the amount due on the judgment was €69,774.05. As I understand it, the judgment mortgage was discharged from the folio on 13th November, 2012 on the application of the plaintiff. That was the proper course for the plaintiff to adopt, because the plaintiff should not have applied to have the judgment mortgage registered and the Land Registry should not have registered it on the folio.
3. In 2011 the plaintiff brought an application in these proceedings under Order 42, rule 24 of the Rules of the Superior Courts (the Rules) for leave to issue execution against the defendants, six years having elapsed since the date of the order of the Court. The application was resisted by the defendants. It was refused on the basis that judgment had not been entered for the amount due on foot of the arbitrator’s award.
4. The relief sought on this application is an order entering judgment in the terms of the arbitration award dated 27th November, 2001 in the sum of €47,264.38 as of 13th May, 2002. An alternative relief sought is an order entering judgment for the sum of €82,554.93, or such other amount inclusive of interest as the Court shall deem meet, on foot of the leave to enforce the arbitration award granted by the order of 13th May, 2002. No specific jurisdiction of the Court was invoked by the plaintiff in the notice of motion.
5. In the affidavit of Conor Kelly, a partner in the firm of architects named as plaintiff in the proceedings, grounding this application, it was averred that the deponent had been advised by his legal advisers that an arbitration award carries interest pursuant to s. 34 of the Act of 1954 as and from the date of the award at the same rate as a judgment debt, but, in circumstances where the original application to enforce the award did not seek to calculate the interest that had accrued, the plaintiff was waiving its entitlement to interest on the award between 27th November, 2001 and 13th May, 2002. So, as I understand the position, the sum of €47,264.38 does not include interest for that period. As regards the figure of €82,554.93, which includes interest to 13th September, 2012, my understanding is that counsel for the plaintiff did not press for the alternative relief on the hearing of the application.
6. There was a degree of confusion discernible in the submissions made on behalf of the parties in relation to the application of the Statute of Limitations, 1957 (the Act of 1957) to the plaintiff’s claim in the events which have happened. Counsel for the plaintiff submitted that the plaintiff has twelve years from 13th May, 2002 in which to enforce the judgment. I assume that in making that submission, counsel was relying on s. 11(6)(a) of the Act of 1957 which provides:
7. There was also a degree of confusion on the plaintiff’s case as to the date from which the plaintiff is entitled to interest. Section 11(6)(b) of the Act of 1957 was cited by counsel for the plaintiff as being of relevance. That section provides:
8. No explanation has been given and no reason has been advanced in the grounding affidavit or otherwise for the delay in bringing this application. What the Court is being asked to do, in effect, is to amend the order of 13th May, 2002 after the lapse of ten and a half years after that order was made. On the other hand, while the defendants were represented at the hearing and have resisted the making of the order sought by the plaintiff, no replying affidavit was filed on their behalf and there is no evidence before the Court of any specific prejudice to them, if the Court accedes to the plaintiff’s application.
12. First, he referred (at p. 500) to the decision of the Supreme Court in Belville Holdings Ltd. v. Revenue Commissioners  1 ILRM 29 in which the issue as to the circumstances in which a final order of a court may, in common law, be interfered with was considered. Counsel for the plaintiff on this application laid particular emphasis on passages from the judgments in Ainsworth v. Wilding  1 Ch. 673 quoted in that case, which included the following passage from the judgment of Bowen L.J.:
(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.”
14. In McMullen v. Clancy, the plaintiff appellant had argued that the delay on the part of the defendant, which in that case was about a year and a half, amounted to acquiescence on the part of the defendant to the order, which estopped him from asking the Court to exercise its jurisdiction to amend the order. The Supreme Court rejected that argument. Murray J. stated (at p. 502):
15. Later, Murray J. addressed the issue of delay and prejudice separately (at p. 505 et. seq.). In particular, he considered the possibility that delay in applying for an amendment to an order may affect the rights and interests of not only the parties to the order, but also of third parties. Having cited certain authorities, he stated (at p. 506):
17. There are two elements incorporated in s. 41 of the Act of 1954. The first is that, subject to the leave of the Court, an arbitration award may be enforced in the same manner as a judgment or order to the same effect. The second is that, where leave is so given, judgment may be entered in the terms of the award. The second element, it seems to me, is an inevitable consequence of the first element. It is difficult to envisage a situation in which a court would give leave to enforce the arbitration award in the same manner as a judgment or order to the same effect, but would not intend that judgment would be entered in the terms of the award. In my view, it is reasonable to infer that the intention of the Court, when making the order of 13th May, 2002, was that judgment would be entered for the total amount of the award as proved by the affidavit evidence before the Court. I also think it is reasonable to infer that the fact that the second element was not spelled out in the order of 13th May, 2002 was due to a mistake, which was probably attributable to the manner in which the relief sought was formulated in the special summons. Therefore, I am satisfied that the Court has power under its inherent jurisdiction to amend the order by ordering that the plaintiff do recover against the defendant the amount due on the award as at 13th May, 2002, that is to say, €47,264.38, provided it is not inequitable to do so, in other words, provided that the amendment can be made without injustice or on terms which preclude injustice.
18. As I have recorded, the defendants have not filed any affidavit in response to this application asserting that there would be a specific prejudice to them if the order was amended. There is no suggestion that the rights of any third party would be affected, if the order was amended. If the order is amended and the plaintiff applies to have a fresh judgment mortgage registered against Folio 21952F County Galway, the owner of an existing encumbrance registered on that folio when the application to register the judgment mortgage is lodged will not be adversely affected by the registration of the judgment mortgage.
19. The sum of €47,264.38 has been due and owing by the defendants to the plaintiff since the award was made on 27th November, 2001. Interest has been running on the award since 27th November, 2001 in accordance with s. 34 of the Act of 1954 at the Court rate. By reason of its failure to move to have the order of 13th May, 2002 amended, the plaintiff has been unable to execute for, or otherwise procure the enforcement of payment of, the debt due to it. Having regard to the delay on the part of the plaintiff in moving to have the order amended, I think it would be unjust to the defendants to allow the plaintiff at this point in time to be in a position recover the interest at the Court rate to which the plaintiff would have been entitled, if it was in a position to execute after the making of the order of 13th May, 2002. Therefore, I consider that, in order to preclude injustice to the defendants, the order of the Court should make it clear that the order which the Court makes on foot of this application is an order which expressly precludes the plaintiff from recovering any interest on the sum of €47,264.38.