High Court: Slip rule amendment can be made before a new judge

About this case:

• Citation:
  [2020] IEHC 105
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

This is especially so where, as in the present case, the High Court judge who had made the original order has since been appointed to the Court of Appeal.

The issue brought before Mr Justice Garrett Simons was whether an application to amend should be referred to the High Court judge who made the original order, or whether the application to amend may properly be made to the High Court judge now sitting in the relevant court list.

Background

The issue arose from proceedings for possession pursuant to section 62 of the Registration of Title Act 1964. Pepper Finance Corporation (Ireland) DAC sought such an order in reference to a charge registered against Oliver Moloney’s title to lands. The charge had originally been created in favour of GE Capital Woodchester Home Loans Ltd, the previous name of Pepper Finance.

Those proceedings were heard and determined by Mr Justice Brian McGovern on 11 October 2010. An order was made on that date directing Mr Moloney to deliver up possession of the mortgaged lands to GE Capital. The substantive order was not enforced, and Mr Moloney did not deliver up possession of the lands.

There are relevant specific time-limits prescribed in the Rules of the Superior Courts. An execution order may be renewed within one year under Order 42, rule 20. Where six years have elapsed since the judgment or order, it is necessary to apply for leave to issue execution pursuant to Order 42, rule 24.

An order was made by Mr Justice Brian McGovern in February 2014 and recorded that “liberty to issue execution” had been refused. The Order stated that the motion issued pursuant to Order 42, rule 24 that Pepper Finance be “at liberty to issue execution in respect of the Order for Possession” was refused.

Conclusion

Mr Justice Simons found that the reference to Order 42, rule 24 was “obviously mistaken”. He said that the notice of motion of 28 January 2014, which was expressly referenced in the court order, had sought relief pursuant to Order 42, rule 20 and not pursuant to rule 24. What was being sought was actually a renewal of the order for possession which was set to expire on 3 February 2014, and such applications are made pursuant to rule 20.

Mr Justice Simons heard an application to amend the order of 10 February 2014 from Counsel for Pepper Finance on 24 February 2020. Mr Moloney did not attend in person. His son did attend, and the court took the “very unusual step of allowing him to make a short submission de bene esse”. The judge emphasised that this did not mean that he had a right of audience. The essence of the son’s submission was to the effect that any application to amend should be made to the High Court judge who had made the original order, namely Mr Justice McGovern.

Mr Justice McGovern is no longer a judge of the High Court, having been appointed to the Court of Appeal in 2018.

Counsel on behalf of Pepper Finance cited the judgment of the Supreme Court in Minister for Justice v McArdle [2005] 4 IR 260, arguing that the amendment of an order did not necessarily have to be made by the same judge as had made the original order. The Supreme Court held that where there is a “clear and manifest error in the order made on foot of that judgment” a court has an inherent jurisdiction to amend the order so as to accurately reflect the decision made.

Mr Justice Simons said that it was obvious that a clerical error occurred in reducing the spoken order made by Mr Justice McGovern to writing. The formal order, as drawn up by the registrar a few days later, mistakenly referred to an application under rule 24. The text of the formal order also uses the wording under rule 24, being leave to execute. This “very minor error” was “entirely understandable in that applications under the former rule are far more common in practice.”

Mr Justice Simons noted that there was no reason to have the application to amend listed before the judge who made the original order. Special arrangements would have to be put in place to have Mr Justice McGovern to sit as a High Court judge to hear the application. The application to amend the order of 10 February 2014 was allowed pursuant to Order 28, rule 11.