Concorde Engineering Company Limited (plaintiff) v Dublin Bus (defendant).
Practice - Application to amend - order of court - Order perfected - Application to include decree for interest - "Slip or omission - Whether phrase could only be applied to situations where but for the amendment requested the order would not represent the intention of the court - Rules of the Superior Courts 1986, Order 28 rule 11.
The High Court (before Mr Justice McCracken); judgment delivered 19 December 1995.
THE power of the court to amend a court order pursuant to Order 28 rule 11 of the Rules of the Superior Courts 1986, under the slip or omission" provision, applies only to situations where if the amendment requested was not effectuated, the original order would not represent the intended order of the court.
The High Court so held in dismissing the plaintiffs application to amend an order of the court to include interest on a sum awarded when it had not been included in the original award.
Daniel Herbert SC, for the plaintiff; Finbarr Fox BL for the defendant.
MR JUSTICE McCRACKEN said that the plaintiff instituted proceedings against the defendant claiming damages for negligence arising from an incident whereby a bus, the property of the defendant, collided with the premises of the plaintiff, thereby causing damage.
The defendant did not deny liability. A sum of £67,100 damages, plus costs, was awarded by Mr Justice McCracken in the High Court on 8 February 1995.
Although the statement of claim included a claim for interest, no argument was addressed at the hearing or after judgment was delivered regarding this claim. No award for interest was included in the order.
On 10 February 1995, the order was perfected. On 8 November 1995, the plaintiff sought an order to amend the judgment to include a decree for interest, pursuant to Order 28 rule 11 of the Rules of the Superior Courts 1986, or in the alternative under the inherent jurisdiction of the court.
Order 28 rule It of the Rules of the Superior Courts 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."
Mr Justice McCracken said that Order 28 rule 11 conferred upon the court a discretionary power to amend an order of the court. The plaintiff therefore had to prove to the court that this was a proper case to amend the order.
Mr Justice McCracken said that what was sought to be rectified here did not arise from a clerical mistake and as a result, the plaintiff had to establish that there had been an accidental slip or omission in the order to invoke Order 28 rule 11.
Referring to Tak Ming Co Ltd v Yee Sang Metal Supplies Co [1973] 1 All ER 569 and In Re Inchcape [1942] Ch 394, Mr Justice McCracken observed that Order 28 rule 11 can be applied where the slip or omission is that of counsel rather than of the trial judge.
Mr Justice McCracken suggested that where no final order had been perfected a court could allow a matter such as interest to be raised as no finality had been reached, but this was not the situation in this case.
He also commented on the fact that it was now nine months since the final order in the action had, been perfected. Mr Justice McCracken stated that regard had to be had to the rights of a defendant to know at the time of perfection of the order, the extent of its liability to the plaintiff. He tell that this was particularly important in a case such as the present case where liability had not been contested.
Mr Justice McCracken concluded, referring to Belville Holdings Ltd v Revenue Commissioners [1994] 1 ILRM 29, that the court must decide in exercising its powers under this order whether, were it not for the slip or omission, the amendment requested would of necessity have been intended in the original order. He found that in the circumstances of this case Order 28 rule 11 could not be applied.
Solicitors: Good Murray Smith & Co (Dublin) for the plaintiff; Michael Carroll (Dublin) for the defendant.
