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Cite as: [1999] IEHC 37

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McMullen v. Clancy [1999] IEHC 37 (3rd November, 1999)

THE HIGH COURT

1995 No. 8142P

BETWEEN

MICHAEL COLIN GEOFFREY McMULLEN

PLAINTIFF

AND

NOEL CLANCY

DEFENDANT

RULING of Mrs. Justice McGuinness delivered the 3rd day of November 1999

1. The above entitled proceedings were heard by me for four days on the 22nd, 23rd, 27th and 28th days of July 1999. I reserved judgment to consider both the factual evidence and the points of law which were raised. I delivered judgment during the long vacation on the 3rd day of September 1999. At the conclusion of my judgment I stated that on the basis of the conclusions I had reached I would dismiss the Plaintiff's claim. At that stage I had reached no conclusion as to the issue of costs.

2. Following the delivery of my judgment Mr. Brady, Senior Counsel for the Defendant, informed the court that in the event of the Plaintiff not bringing an appeal to the Supreme Court the Defendant would not seek an Order for costs against the Plaintiff. After some brief submissions by both parties, I considered that the Plaintiff, who is a litigant in person, should be given some time to consider both myjudgment and the implications of the Defendant's offer in regard to costs. I accordingly adjourned the matter of costs to the 5th day of October 1999.

3. In the meantime, I became aware that the Plaintiff had appealed my decision to the Supreme Court. I had not read his Notice of Appeal and was unaware of its contents.

4. On the 5th day of October 1999, prior to any submission on the matter of costs, the Plaintiff informed me that he wished to take the oath and to give evidence, and to re-open the matters which had been dealt with in the original proceedings. Mr. Brady sought an adjournment to enable him to obtain instructions both in regard to the content of the Plaintiff's Notice of Appeal and in regard to the Plaintiff's application to give further evidence. The Plaintiff pressed his application to give further evidence with some insistence and made reference to a letter which had not been opened to the court during the hearing but which, he said, had been in the possession of the court and to which no reference had been made in myjudgment. In the event, I acceded to Mr. Brady's application for an adjournment and relisted the matter for the 12th day of October 1999. This enabled me to read the Plaintiff's Notice of Appeal and to give some consideration to his claims regarding a letter to which he referred in that Notice.

5. At the commencement of the hearing on the 12th day of October 1999 I stated to the court the result of my investigation and consideration of the matter. In summary, what appears to have occurred is as follows. During the course of the original hearing in July last a number of files and books of documents were handed into court by both sides. Some of these were put into evidence as a whole, including, for example, transcripts of telephone conversations between the Plaintiff and Defendant. Among the materials handed in was a booklet of documents which appeared on the face of it to be a Brief to Counsel. This had been handed in by Senior Counsel for the Defendant in Order to open a particular document contained in it to the court. None of the remainder of that booklet had been put into evidence and therefore did not form part of the documentary material considered by me in the course of preparing myjudgment. In addition, on account of the general nature of the booklet, I considered that the remainder of it which had not been opened to the court was covered by legal professional privilege and for that reason also I did not read it.

6. Following the delivery of my judgment on the 3rd day of September 1999 I returned all the papers which I held in connection with the case to my registrar, who returned them to the parties. It appears that the booklet of documents which had been handed to the court by Mr. Brady was returned in error to the Plaintiff. The Plaintiff perused the documents contained in the booklet and there, it appears, came across the letter to which he refers in his Notice of Appeal.

7. The Plaintiff correctly submitted to me that once the Order consequent on my judgment of the 3rd day of September 1999 was perfected he had to issue his Notice of Appeal within the time limit set out in the Rules of the Superior Courts. However, he persisted in his submission that the matter should be re-opened before this court in order to deal with the new evidence which in his view supported, and indeed fully established, the allegations which he had made against the Defendant in his original proceedings.

8. Senior Counsel for the Defendant, Mr. Brady, submitted in the first place that the letter referred to in the Plaintiff's Notice of Appeal was not part of the evidence at the trial and that it could not have been admissible as evidence since it was covered by legal professional privilege. In the second place, he submitted that it was not possible for this court to re-open the proceedings and to receive new evidence. Once judgment was given and the Order perfected the judge in those proceedings was functus officio.

9. The Plaintiff submitted that artificial rules of legal professional privilege should not be allowed to stand in the way of justice. It was now clear that the matters alleged against the Defendant were true and the court should proceed to deal with the changed situation.

10. Before dealing in any way with the substance of the Plaintiff's allegations, it seems to me, that I must decide whether this court has jurisdiction to re-open the matters which formed the basis of the original proceedings. As it happens, it fell to me to deal with the question as to whether, oncejudgment has been given and the final Order made, the court has any jurisdiction to rehear, alter or vary that judgment or Order in a recent case of G.McG. -v- D.W. in which I gave judgment on the 18th day of June 1999. At pages 18 to 22 of that judgment (which is unreported) I dealt with the English and Irish authorities on this point and I may briefly refer to them here.

11. In Halsbury fourth edition, volume 26 at paragraphs 555 to 557, it is stated:

"As a general rule, except by way of appeal, no court, judge or master has power to rehear, review, alter or vary any judgment or Order after it has been entered either in an application made in the original matter or in a fresh action brought to review the judgment or Order. The object of the rule is to bring litigation to finality, but it is subject to a number of exceptions. For example, a clerical error or an error arising from an accidental slip or omission may be corrected under Rules of Court or the court's inherent jurisdiction. The court has inherent jurisdiction to vary or clarify an Order so as to carry out the court's meaning or make the language plain or to amend it where a party has been wrongly named or described unless this would change the substance of the judgment..... The court has no power to amend or set aside its judgment or Order where it has come to an erroneous decision of fact or law, or where new material evidence has come to light or if it transpires that the judgment or Order has been obtained by fraud or false evidence: in such cases relief must be sought by way of appeal or, where appropriate, by separate action to set aside the judgment or Order."

12. A similar approach is evident in the Irish authorities. In Hughes -v- O'Rourke [1986] I.R.LM 538, the Supreme Court held that once a final Order has been made and perfected in the High Court the jurisdiction of that court as to the matters determined by that Order is exhausted. In Belville Holdings -v- Revenue Commissioners [1994] 1 I.R.LM 27 the Appeal Commissioner, at the request of the Appellant company, stated a case for the opinion of the High Court pursuant to Section 428 of the Income Tax Act 1967 following the determination of appeals brought by the Appellant company against two assessments to Corporation Tax made in respect of it by the Inspector of Taxes. The facts of the case were complex and there is no need to recite them here. The learned Carroll J., heard and determined the matter on the 14th day of May 1985 by answering the question raised in the case stated in the negative. At a later date in 1988 an application was made to the learned judge to amend her Order by the addition of a direction that the appeal should be re-entered before the Appeal Commissioner. This she did. On appeal, the Supreme Court set aside the amendment to the original Order. In the course of hisjudgment, the learned Finlay C.J., fully discussed the principles applicable to the possible amendment of final Orders. At page 36 he stated:

"There is, however, I am satisfied, a wider and more fundamental jurisdiction in a court to amend an Order which was previously made, even though that Order is in the form of a final Order and has been perfected. We have not been referred to, nor have I been able to discover, any decision of this court or of the Irish Courts dealing with this question.

The position and principles appear however to be accurately stated in the judgment of Romer J. in Ainsworth -v- Wilding [1896] 1 Chancery 673, where, at page 677, he stated as follows:

"So far as I am aware, the only cases in which the court can interfere after the passing and entering of the judgment are these:

(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 Order 28 Rule 11;

(2) when the court itself finds that the judgment as drawn up does not

correctly state what the court actually decided and intended.""

13. The learned Finlay C.J., went on to quote further from the English authorities. The Supreme Court in Attorney General -v- Open Door Counselling Limited (No.2) [1994] 2 I.R.333 provides the most telling authority on this point. In his judgment, with which Hederman J., Egan J., and Blaney J., agreed, the Chief Justice held that the Supreme Court did not have any jurisdiction to alter an Order it had previously made unless there had been an accidental slip in the judgment as drawn up or the judgment as drawn up did not accurately reflect what the court had actually decided or intended or that it was established that the judgment had been obtained by a fraud. The learned Finlay C.J. at page. 338 onwards quoted the passage from Belville Holdings case which I have already quoted above approved of it. I am clearly bound by this jurisdiction and I must therefore hold that this Court is now functus officio and has no jurisdiction to re-open the issues decided in the judgment and Order already made and perfected. The sole jurisdiction remaining in this court is to decide the matter of costs.

14. While I have held that it is not possible for the Plaintiff to re-open the proceedings before me and to bring new evidence, it would be open to him, in the event of his bringing an appeal to the Supreme Court, to apply to the Supreme Court to receive further evidence on the hearing of the appeal. Such a procedure is available to him under Order 58 Rule 8 of the Rules of the Superior Courts.


© 1999 Irish High Court


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