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Cite as: [2002] 3 IR 493, [2002] IESC 61

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McMullen v. Clancy [2002] IESC 61 (31st July, 2002)

THE SUPREME COURT

Murphy, J.

Murray, J.

Fennelly, J.

33/01

BETWEEN

MICHAEL COLIN GEOFFREY McMULLEN

Plaintiff/Appellant

AND

NOEL CLANCY

Defendants/Respondent

Judgment delivered the 31st day of July, 2002 by Murray, J. [Nem Diss.]

1. 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 The 1999 order was originally made by

2. 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.

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 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.

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.

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

5. 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"

6. 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.

7. 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.

8. 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."

9. 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.

10. 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.

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

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

13. 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.

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

15. 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.

16. 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

17. 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.

18. 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.

19. 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.

20. 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.

21. 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

22. 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

23. 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.'

1 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.'"

24. 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."

25. 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."

26. 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).

27. 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.

29. 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.

30. 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.

31. 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

32. 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.

33. 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.

34. 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.

35. 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

36. 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.

37. 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."

38. 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."

39. 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.

40. 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.

41. 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.

42. 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

43. 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.

44. 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.