McG. (G.) v. W. (D.) (No.2) [1999] IEHC 208; [2000] 1 ILRM 121 (18th June, 1999)

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1. The above entitled proceedings were heard by me in November 1998. At the conclusion of the proceedings, on 12th November 1998, due to the then urgency of the matter, I made an Order by way of declaration pursuant to Section 29 (1) of the Family Law Act 1995 that the Decree dated the 12th day of February 1985 of dissolution of the marriage solemnised at the Roman Catholic Church ofRathmines in the Registrar's district of Rathmines in the Superintendent Registrar's district of Dublin in the County of Dublin on the 27th day of October 1967 between the said Petitioner and the said Notice Party was a valid Decree and entitled to recognition in this jurisdiction. In addition I dismissed the Petitioner's application for a Decree of Nullity in respect of his marriage to the Respondent which was solemnised at the Register Office District of Westminster in the City of Westminster on the 15th day of November 1985. At the time I reserved the setting out of reasons for the decision which I had reached. On the14th of January 1999 I gave judgment setting out my reasons. At that stage I considered that the proceedings before me were concluded.

2. The Attorney General now seeks in a limited way to reopen the proceedings. By Notice of Motion issued on the 10th of March 1999 he seeks an Order pursuant to Order 15 Rule 13 or in the alternative to Order 60 Rules 2 and 4 of the Rules of the Superior Courts or in the further alternative pursuant to the inherent jurisdiction of the Court joining the Attorney General as a Notice Party to these proceedings. This Notice of Motion having been served on the Petitioner, the Respondent and the Notice Party, the matter was argued before me on the 22nd of April 1999. The Notice of Motion was grounded on the affidavit ofGrainne O'Mahony, a Principal Solicitor in the office of the Chief State Solicitor. A replying affidavit was sworn by Rosemarie Loftus, Solicitor for the Petitioner. The other parties did not file replying affidavits but it was made clear by their Counsel in Court that they were opposed to the granting of the Order sought by the Attorney General.

3. In her affidavit Grainne O'Mahony, Solicitor draws attention to the provisions of Section 29 (4), 29 (5) and 29 (8) of the Family Law Act 1995 ("the 1995 Act") which permit the serving of notice of declaratory proceedings on the Attorney General. She states at paragraph 7 of her affidavit that she is advised by Counsel that it is a principle of the law in respect of declarations that the person seeking same must be able to secure what has been described as"a proper contradictor". She notes that, as was stated in my own judgment, no submissions were advanced to contradict the submissions that were made to the Court on behalf of the parties to the proceedings. She refers to the Attorney General's present concern as to the state of the law in relation to the recognition of foreign divorces and more particularly as to the effect to be given to thejudgment of this Court. At paragraph 13 of her affidavit she states that she is advised by Counsel that it would be appropriate, notwithstanding the relief already granted herein, to make an Order joining the Attorney General as a party to these proceedings. Should such an Order be made she states that it is the intention of the Attorney General to appeal the Orders already made herein to the Supreme Court. Senior Counsel for the Attorney General, Mr.Fitzsimons, made it clear to this Court that, if joined in the proceedings, the Attorney General will in his proposed appeal to the Supreme Court not merely endeavour to clarify the law on the recognition of foreign divorces and its effect on the State but will actively contest the conclusions which I reached with regard to the recognition of the divorce of the Petitioner and the Notice Party which was decreed by the English Court on the 12th of February 1985. If this Court grants the Order sought by the Attorney General, the Attorney General will immediately move the Supreme Court for an extension of time for leave to appeal.

4. In her replying affidavit on behalf of the Petitioner Ms Rosemarie Loftus, Solicitor, avers that, in reliance on the judgment of this Court, the Petitioner sought a divorce in the High Court of Justice in England and Wales in respect of his marriage to the Respondent of the 15th day of November 1985. That Court granted a Decree Nisi on the 30th day of December 1998 and a Decree Absolute on the 11th day of February 1999. MsLoftus points out that the Petitioner has in all respects relied on the judgment of this Court and that his only concern had been to resolve the outstanding questions affecting his marital status so that he could proceed on a clear established basis in the relationship he had formed since the breakdown of his marriage with the Respondent. Were the proceedings to be reopened, the position of the Petitioner and of the other parties would be rendered uncertain again to their great disadvantage.

29 (1) The Court may, on application to it in that behalf by either of the spouses concerned or by any other person who, in the opinion of the Court, has a sufficient interest in the matter, by Order make one or more of the following declarations in relation to a marriage, that is to say:

(b) A declaration that the marriage subsisted on the date specified in the application,

(c) A declaration that the marriage did not subsist on the date so specified, not being the date of the inception of the marriage,

(d) A declaration that the validity of a divorce, annulment or legal separation obtained under the civil law of any other country or jurisdiction in respect of the marriage is entitled to recognition in this State,

(e) A declaration that the validity of a divorce, annulment or legal separation so obtained in respect of the marriage is not entitled to recognition in this State.

(2) The Court may grant an Order under subsection (1) if, but only if, either of the spouses concerned -

(b) has been ordinarily resident in the State throughout the period of one year ending on that date, or

(ii) had been ordinarily resident in the State throughout the period of one year ending on that date

(3) The other spouse or the spouse concerned or the personal representative of the spouse or each spouse, within the meaning of the Act of 1965, shall be joined in proceedings under this Section.

(4) The Court may, at any stage of proceedings under this Section of its own Motion or on application to it in that behalf by a party thereto, order that Notice of the proceedings be given to the Attorney General or any other person and that such documents relating to the proceedings as may be necessary for the purposes of his or her functions shall be given to the Attorney General.

(5) The Court shall, on application to it on that behalf by the Attorney General, order that he or she be added as a party to any proceedings under this section and, in any such proceedings, he or she shall, if so requested by the Court, whether or not he or she is so added to the proceedings, argue any questions arising in the proceedings specified by the Court.

(6) Where notice of proceedings under this Section is given to a person (other than the Attorney General), the Court may, of its own motion or on application to it in that behalf by the person or a party to the proceedings, order that the person be added as a party to the proceedings.

(7) Where a party to proceedings under this Section alleges that the marriage concerned is or was void, or that it is voidable, and should be annulled, the Court may treat the application under subsection (1) as an application for a Decree of Nullity of Marriage and may forthwith proceed to determine the matter accordingly and may postpone the determination of the application under subsection (1).

(8) A declaration under this Section shall be binding on the parties to the proceedings concerned and on any person claiming through such party and, if the Attorney General is a party to the proceedings, the declaration shall also be binding on the State."

5. The remainder of the section is irrelevant. Order 15 Rule 13 of the Rules of the Superior Courts on which the Attorney General relies in his Motion deals with the joinder of parties to an action. It is however clear, as is indeed admitted by Mr.Fitzsimons, that this rule deals solely with the joinder of parties before the conclusion of an action and before the making of final Orders. Order 60 deals with the right of the Attorney General to notice of constitutional issues and Rule 2 refers to actions in which questions as to the interpretation of the Constitution arise. Rule 4 provides that the Attorney General is entitled to appear and become a party in such actions. However no question of the interpretation of the Constitution in fact arose in the present proceedings and therefore, again as admitted by Mr.Fitzsimons, it is not open to the Attorney General to rely on Order 60. The matter therefore can only arise under the inherent jurisdiction of the Court and it was argued on that basis before me.

6. Senior Counsel for the Attorney General, Mr. Fitzsimons, acknowledged the difficulty of reopening a case which had concluded and of doing so with the purpose of adding a party who had played no part in the original proceedings. However, he drew attention to concerns which the Attorney General had in connection with the effect of thejudgment and of the change in the law which it might bring about in regard to the recognition of foreign divorces. As an example he stated that the Department of Foreign Affairs received frequent enquiries from persons seeking to ascertain the validity or otherwise of their divorces and subsequent remarriages. Certificates in this regard appear to be issued by the Department of Foreign Affairs. The result of myjudgment in this case was to cause the relevant officials considerable difficulties and to leave them in a state of confusion.

7. Mr. Fitzsimons pointed out that the question of joining the Attorney General in the proceedings under Section 29 (4) had not arisen at any stage during the hearing in the High Court. Since the Attorney General was unaware of the case at the time, no question of his applying himself to be joined under Section 29 (5) of the 1995 Act could have arisen. Hesubmitted that all parties in the case were agreed as to the desirable outcome; there was no proper contradictor and the case was not fully fought. It would, he felt, have been desirable for the Attorney General to be joined at an early stage in the proceedings so that he could fulfil the role of contradictor and, if he so decided, bring an appeal to the Supreme Court.

8. With regard to the jurisdiction of this Court to reopen the matter, he referred to the Rules of the Superior Courts Order 28 Rule 11 - the "Slip Rule" - which allowed for corrections, albeit of a limited nature, to be made in judgments or Orders. He suggested that Order 28 Rule 12 in regard to the amendment of defects and errors in proceedings might also be of relevance. He referred to the judgment of the Supreme Court in Belville Holdings Limited -v- Revenue Commissioners [1994] I.L.R.M. 29 where the learned Finlay C.J. referred (at page 36) to there being "a wider and more fundamental jurisdiction in a Court to amend an Order which it has previously made".

9. Mr. Fitzsimons also drew the Court's attention to Section 29 (8) of the 1995 Act, which provided that a declaration under the Section shall be binding on the State if the Attorney General was a party to the proceedings. Since the Attorney General had not been joined, it appeared that the declaration was not, in fact, binding on the State, and this gave rise to an even greater degree of uncertainty.

10. For the Applicant G. McG., Mr. Durcan submitted that as far as this Court was concerned it was a matter of discretion whether the Attorney General should be joined under Section 29 (4). There was nothing wrong, or disabling, in the fact that the Attorney General was not a party to the original proceedings. Only if the Attorney General himself applied to be joined under Section 29 (5) (which he had not) was it mandatory for the Court to add him as a party.

11. In addition Mr. Durcan submitted that this Court was now functus officio as far as these proceedings were concerned. Judgment had been given and final Orders made and perfected. The Court had no jurisdiction to reopen the matter. He referred to the test as to what is a final Order as set out in Bozson -v- Altrincham Urban District Council [1903] 1 KB 547. In that case the Court of Appeal in the judgment of Lord Alverstone C.J. set the test as follows:

"It seems to me that the real test for determining this question ought to be this: does the judgment or Order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final Order; but if it does not, it is then in my opinion, an interlocutory Order."

13. Mr. Durcan also submitted that what the Attorney General sought to achieve by his Motion was to bring a new party into the proceedings for the purpose of undoing the finality of the Court's Order. He argued that to permit the joinder of parties after a final Order was a dangerous and undesirable principle. Once such a principle was established it could not be confined to the Attorney General; there was a danger that it would be widened to allow various other parties to intervene after a case was completed with the result that the whole principle of certainty and finality in litigation would be fatally eroded. In the present case, if the Attorney General succeeded in bringing the matter to the Supreme Court on appeal, there would be no issue between the actual parties to the Action in the appeal; the appeal would only be a matter of the Attorney General arguing against the decision of the Trial Judge, which had been made after full hearing and argument, simply on the grounds that the Attorney General disapproved of it. That could not be right. The Attorney General apparently felt that thejudgment of the Court left the law on the recognition of divorce in a state of uncertainty. Even if this were true, it was certainly not a situation without precedent. As an example Mr. Durcan pointed out that the law on marital property under the Married Women's Status Act 1957 remained in a state of uncertainty, with widely differing interpretations by High Court Judges and no authoritative decision by the Supreme Court, for many years. Mr.Durcan also pointed out that the Court, in addition to making the declaration as to the validity of Mr. McG.'s divorce and remarriage, had dismissed his petition for nullity. If the Court were to allow the recognition matter to be reopened, what effect would this have on the nullity petition?

14. Mr. Donal O'Donnell, Senior Counsel for the Notice Party, adopted the arguments made by Mr. Durcan. He went on to suggest that in making an application of this type the Attorney General was endeavouring to assume a role like that of the Queen's Proctor in the old English divorce law - a role that was long dead and which no-one sought to resurrect. He argued that the Attorney General sought to be joined in the proceedings, it appeared from Mr.Fitzsimons submissions, in order to argue points in the Supreme Court which had never been made in the High Court. This was totally contrary to the normal jurisprudence of the Supreme Court - see, for instance, the judgment of the Supreme Court in K.D.(C.) -v- M.C. [1985] I.R. 697 where the Court (Finlay C.J.) held as a fundamental principle that the Supreme Court should not hear and determine an issue which had not been raised in the High Court.

15. In regard to the lack of a proper contradictor, Mr. O'Donnell made a distinction between the presence of a contradictor and actual contradiction. In the present proceedings every party who would have had an interest in opposing the declaration, if he or she so wished, was present in Court and fully represented. In matrimonial proceedings the appropriate contradictor was the spouse, not the Attorney General. It could not be argued that the Court was prevented from making a declaration simply because none of the interested parties, all of whom were present in Court, argued against it. He referred to a number of English authorities, in particular the case ofClarke -v- Chadburn [1985] 1 All E.R. 211. In that case, which arose out of the miners' strike of 1984 and the dispute between the National Union of Mineworkers and the miners of Nottingham, the Court made a far-reaching declaration that alterations to the rules of the National Union of Mineworkers which purported to give the Union extra disciplinary powers over its members, and which had been passed by the requisite two thirds majority, were void and not binding. The declaration was made not only without contradictory argument but without any presence in Court at any stage by or on behalf of the Defendants.

16. Mr. O'Donnell submitted that on the law as it stood the general objection to making a declaration without a "proper contradictor" was based on cases where a declaration was sought without any full hearing of the arguments, by way of judgment by default or judgment on consent. The situation in the instant case was entirely different; in her judgment the Trial Judge had acknowledged that Counsel had fully and fairly opened the authorities and had laid out their arguments in a fair and responsible way.

17. Mr. O'Donnell submitted that the intervention of the Attorney General created a "bizarre and distressing" situation for the Notice Party. Having for many years arranged her life and her day-to-day realities on the basis of the validity of her English divorce and her subsequent remarriage in England, she found herself, in the original proceedings, not alone unsure of her marital status but also the subject of actual criminal investigation. Having been restored to certainty and legality by what she naturally assumed was the final Order of the High Court, she now found her marital and family position, and the position of her daughter, further threatened by the intervention of the State. This was surely a basic injustice.

18. Senior Counsel for the Respondent Ms Clissman adopted the arguments of Mr. Durcan and Mr. O'Donnell. She submitted that the very limited instances in which the Court could intervene after a final Order had been made were set out in the Belville Holdings case. This had been repeated and reinforced by the Supreme Court in the case of The Attorney General (at the relation of the Society for the Protection of Unborn Children) -v- Open Door Counselling Limited (No. 2) [1994] 2 I.R. 333. In that case the Supreme Court in 1988 had granted a perpetual injunction preventing the Defendants from, inter alia, disseminating information in regard to the obtaining of abortions outside the jurisdiction. The injunction was based on the then terms of Article 40.3.3 of the Constitution as adopted by referendum in 1983. Subsequently Article 40.3.3 was further amended so as to permit the making available of information relating to services lawfully available in another State. The Defendants applied by Motion to the Supreme Court to discharge or vary the perpetual injunction. The Supreme Court refused the Motion, holding that the Order which the second Defendant sought to vary had beena final determination of the appeal and 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 and intended or it was established that the judgment had been obtained by fraud. In his judgment Finlay C.J. quoted at some length from his judgment in the Belville Holdings case and reaffirmed the principles set out there. Ms Clissman argued that if a final Order could not be disturbed even where the constitutional provisions had subsequently changed and the constitutional rights of individuals were thereby affected, then a fortiori in the present case there should be no interference with the final decision of the Court.

19. She also stressed the fact that, as set out in the affidavit of Rosemarie Loftus, the Petitioner in reliance on the Order of this Court had sought and obtained a Decree of Divorce in the High Court of Justice in England and Wales in respect of the marriage between the Petitioner and her client, the Respondent. Both parties having acting in reliance on this Court's decision, it would be manifestly unjust to throw them, and indeed the Notice Party, back into a position of uncertainty. In addition, the dismissal of the nullity petition would leave the parties without any alternative remedy.

20. Mr. Fitzsimons in reply dealt with the difficulty of possible injustice to the parties by suggesting that alternative remedies were available. The required four year period of separation between the Petitioner and the Respondent would soon be reached, and the parties could then obtain a divorce in this jurisdiction. Alternatively, despite the dismissal of the Petitioner's nullity petition, the Respondent could now seek a declaration of nullity on similar grounds. He also submitted that while under Section 29 (8) the declaration made by the Court was not binding on the State, nevertheless thejudgment and Order were couched in general terms and would therefore be seen to be applicable to persons in general. In regard to the matter of the necessity for a proper contradictor he submitted that a contradictor in any case was "a party coming in to make the opposite case".

21. The jurisdiction under which this Court granted the declaration in question in this case is a clear statutory jurisdiction, set out in Section 29 of the Family Law Act 1995. It is clear from the Section that as a matter of discretion the Court may either of its own Motion or on an application by any party to the Action order that the Attorney General be joined as a Notice Party. No such application was made to this Court at the time of the original trial. In fact, as was freely acknowledged at the hearing of the present Motion, the question was not raised in any way at the trial. Under Section 29 (5), had the Attorney General applied to be added as a Party, such a course would have been mandatory, but no such application was made. In her affidavit on behalf of the Attorney General MsGrainne O'Mahony, Solicitor, explains that the Attorney General was understandably unaware of the proceedings at the time.

22. Because the Attorney General was not a party to the proceedings, the position under Section 29 (8) appears to be that the declaration made by the Court is binding on the parties and anyone claiming through them but is not binding on the State. Mr. O'Donnell and Mr. Durcan, on behalf of the parties, acknowledge that this position may have some disadvantages for the parties but accept the position as set out in the subsection.

23. In hindsight it might have been an advantage, both in general and to the parties, had the Attorney General been joined in the proceedings. Nevertheless it is clear from the wording of the section as a whole that it is envisaged that in some cases a declaration will be made without the participation of the Attorney General. The absence of the Attorney General as a party does not disable the Court from making a declaration under the Section. It seems to me that the declaration was made within jurisdiction.

24. Mr. Fitzsimons tells me that the decision in this Court has created difficulties for State institutions and Government Departments who as a matter of practice issue certificates as to the validity of the marriages of individuals who apply to them. Naturally I regret that such difficulty should arise; it might, however, with the greatest respect to the Attorney General, besuggested that such a practice is open to question on a number of grounds. I would in this context comment that, with the single exception of the Domicile and Recognition of Foreign Divorces Act 1986, all the law on the recognition of foreign divorces in this jurisdiction has been judge-made law, from thejudgment of Kingsmill Moore J. in Mayo-Perrott -v- Mayo-Perrott [1958] I.R. 336, through the Supreme Court judgment in Gaffney -v- Gaffney [1975] I.R. 133 and leading on to the judgment of the Supreme Court in W. -v- W. [1993] 2 I.R. 476 which in effect made a crucial change in the recognition rule in regard to divorces granted between 1937 and 1986. In English jurisdiction also the rules of recognition of foreign divorces were established and developed through the common law - see, for example,Le Mesurier -v- Le Mesurier [1895] A.C. 317, Travers -v- Holley [1953] P. 246 and Indyka -v- Indyka [1968] 1 A.C. 33.

25. Given this historical background, and given the express terms of Section 29 of the 1995 Act, it does not seem to me that the concerns expressed by the Attorney General through his Counsel really necessitate the extreme step of reopening a case in which final Orders have already been made.

26. Mr. Fitzsimons also suggests that it is not open to the Court to make a declaration where there is no proper contradictor in the sense for which he argues of a party to come in and make the opposing argument. On this question Mr. Fitzsimons referred me to the judgment of Walsh J. in Transport Salaried Staffs' Association -v- Coras Iompair Eireann [1965] I.R. 180. That case dealt with a written agreement on staff pay and other conditions made between the Plaintiffs and C.I.E.. The Defendants attempted to introduce a new recruitment grade of staff outside the terms of the agreement. The Supreme Court held and declared that the Defendant Company had committed a breach of the agreement and of the relevant section of the Railways Act 1924. The Court granted an injunction to restrain any appointment of staff outside the terms of the agreement. In referring to the making of declarations generally, the learnedWalsh J. said (at page 202)

"The Court of Chancery (Ireland) Act 1967 Section 133 clearly sets out the right of the Court to make declaratory Orders without granting other or consequential relief .... In modern times the virtues of the declaratory action are more fully recognised than they formerly were and English decisions and dicta in recent years have indicated a departure from the conservative approach to the question of judicial discretion in awarding declarations. A discretion which was formerly exercised 'sparingly' and 'with great care and jealously' and 'with extreme caution' can now, in the words of LordDenning in the Pyx Granite Company Limited case be exercised 'if there is good reason for so doing' provided, of course, that there is the substantial question which one person has a real interest to raise and the other to oppose. In Vine -v- The National Dock Labour Board Viscount Kilmuir L.C. at page 112 cites with approval the Scottish tests set out by Lord Dunedin in Russian Commercial and Industrial Bank -v- British Bank for Foreign Trade Limited who said, at page 448:

'The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought.'

It is also to be observed that the fact that the declaration is needed for a present interest has always been a consideration of great weight."

27. Mr. O'Donnell, however, referred me to two more recent English authorities - that of Clarke -v- Chadburn to which I have already referred above and also that of Patten -v- Burke Publishing [1991] 2 All E.R. 821. In that case, which dealt with a publishing contract, the Court held that the rule of the Chancery Division that a declaration would not be granted when giving judgment by consent or without trial was a rule of practice and not of law and would give way to the paramount duty of the Court to do the fullest justice to the Plaintiff to which he was entitled. In his judgment (at page 822) Millett J. stated:

"It is not the normal practice of this division to make a declaration when giving judgment by consent or without a trial as in the case of a judgment in default of defence or of notice of intention to defend the proceedings."

28. He went on to refer to earlier cases which held that declarations ought not to be made on admissions of the parties or on consent but only if the Court was satisfied by evidence and should not be made where relief was to be granted without trial or in default of pleading. The power to give declaratory relief he felt should be exercised only in cases in which deny it would be to impose injustice on the claimant. However he went on to say at page 823:

"Quite apart from this, however, it is clear from Wallersteiner -v- Moir that the rule is a rule of practice only. It is not a rule of law. It is a salutary rule and should normally be followed, but it should be followed only where the claimant can obtain the fullest justice to which he is entitled without such a declaration."

30. It appears, therefore, that at least in the English jurisdiction, the presence of a party putting forward the opposing arguments is not absolutely essential for the making of a declaration. It is a rule of practice and must give way to the paramount duty of the Court to do the fullest justice to the Plaintiff.

31. In the instant case there was no question of the declaration being made in the form of a judgment in default or even as a judgment by consent without hearing the evidence or legal argument. The necessary evidence was provided to the Court and, as I pointed out in my earlier judgment, Counsel through written and oral submissions had both fully and fairly opened the authorities to me and laid out their arguments in a fair and responsible way.

32. One might also note that in many cases over the years this Court has made declarations that a marriage is null and void in cases where the respondent does not in any way specifically oppose the arguments of the petitioner. Of course the Court has to be fully satisfied that such a declaration should be made both on the facts and on the law, and there is no question of ajudgment by consent, but nor is there any necessity to bring in an artificially constructed third party to make the opposing arguments.

33. While it seems to me that on the authorities the Court in a proper case and where justice demands it is enabled to make a declaration in the absence of a party making the opposing arguments, I consider that this (and, indeed, the previous point in regard to the interpretation of the section), are in reality points which might be argued as grounds of appeal against the decision of this Court. I have dealt with them at some length out of respect for the arguments put forward on both sides by learned Counsel, but in reality it seems to me that they are irrelevant to the real issue which is before the Court in this motion. This central issue is whether I have the jurisdiction to make the Order sought. InHalsbury 4th 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 Action or 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 thejudgment.... 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."

34. A similar approach is evident in the Irish authorities opened to me. In Belville Holdings -v- Revenue Commissioners [1994] 1 I.L.R.M. 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 learnedCarroll J. heard and determined the matter on the 14th 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 it has 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 Ch 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.'

Having referred to the decision of the Court of Appeal in In Re.Swire 30 Ch.D 239 Romer J. quoted from the judgments in that case as follows at page 678:

'Cotten L.J. 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.'

Lindey L. J. 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 not.'

And Bohan L. J. 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 meaning of the Court at the time when the Order was made, provided the amendment can be made without injustice or in terms which preclude injustice.'

I am satisfied that these expressions of opinion validly represent what the true common law principle is concerning this question. I would emphasise, however, that it is only in special or unusual circumstances that an amendment of an Order passed and perfected, where the Order is of a final nature, should be made by the Court. The finality of proceedings both at the level of trial and possibly more particularly at the level of ultimate appeal is of fundamental importance to the certainty of the administration of law and should not lightly be breached."

35. A very similar approach was taken in the English Chancery Division by Morton J. in Re. V.G.M. Holdings Limited [1941] 3 All E.R. 417. In Hughes -v- O'Rourke [1986] I.L.R.M. 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.

36. Perhaps the most striking authority however, is that opened to me by Ms Clissman - the judgment of the Supreme Court in Attorney General -v- Open Door Counselling Limited (No. 2), to which I have already referred above. In his judgment, with which Hederman J., Egan J. and Blayney 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 the Belville Holdings case which I have already quoted above. He went on to say (at page 340):

"What is at issue in this case is as to whether the Court, having delivered a judgment and made an Order in accordance with the law as it then was, which was perfectly correct and carried out the full meaning and intent of the Court in 1988, can now discharge or vary that Order by virtue of an amendment of the law which has occurred since it was made.

To that issue, if it were dealing with a question of any statutory amendment of law or any amendment of the law arising from a further judicial decision in another case, there can be only one answer, namely, that the Court has not got, as a Court of ultimate appeal, any such jurisdiction and that it must beobliged, as a matter of fundamental principle, to refuse to alter the Order it previously made."

37. The learned Chief Justice went on to reject the argument that a different approach should apply because Article 40.3.3 of the Constitution had been amended in a way which affected the constitutional rights of the parties.

38. Thus, even where such a highly unusual change of circumstances had occurred subsequent to the final Order, the Supreme Court was definite in its decision that the Court had no jurisdiction to alter the Order it had previously made. I am clearly bound by thisjudgment and therefore this Court has no jurisdiction to alter the Order made on the 12th of November 1998.

39. In addition it seems to me that it would be a manifest and striking injustice to the parties to reopen a decision of such practical importance to their ordinary lives and in reliance upon which they have already acted.

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McG. (G.) v. W. (D.) (No.2) [1999] IEHC 208; [2000] 1 ILRM 121 (18th June, 1999) URL: http://www.bailii.org/ie/cases/IEHC/1999/208.html Cite as: [2000] 1 ILRM 121, [1999] IEHC 208

High Court of Ireland Decisions

McG. (G.) v. W. (D.) (No.2) [1999] IEHC 208; [2000] 1 ILRM 121 (18th June, 1999)