Judgment delivered by Macken, J. on the 31st day of March, 2011
1. This is an appeal from the ex tempore judgment of the High Court (Murphy, J.) delivered on the 27th July, 2010, and the Order made thereon on the 28th July, 2010. That judgment was made on a Motion filed on behalf of the respondent to strike out certain pleas from the Statement of Claim delivered by the appellant in these proceedings, on the 19th February, 2010, to which a defence was delivered by the respondent on the 4th May, 2010. These pleas are the following:
(a) The claim for an order setting aside the order of the Circuit Court (O’Sullivan, J.) of the 5th February, 2008;
(b) The claim for an order setting aside the orders of the High Court of the 7th April, 2008 and the 25th May, 2008;
(c) The claim for an order setting aside what was claimed as the “purported settlement of the above proceedings”;
(d) The claim for an order remitting “the said proceedings” to the Circuit Court for hearing;
(e) The claim for an order granting the plaintiff possession of the Avoca Inn, Avoca, County Wicklow;
(f) The claim for specific performance of a lease dated the 16th April, 2002;
(g) The claim for an order staying enforcement of the aforesaid orders of the Circuit Court and the High Court.
The “proceedings” referred to were Circuit Court proceedings, the subject of the Order at (a). The learned High Court judge acceded to the application and struck out all the above. By a Notice of Appeal dated the 18th August, 2010, the appellant appealed the same.
I will return to the Notice of Appeal in due course. To understand the appeal it is necessary, however, to say something about the background to the critical factor giving rise to these proceedings, that is, the Circuit Court Order referred to at (a) above.
The Circuit Court Proceedings
2. These proceedings and the Circuit Court proceedings, in which the last mentioned Order was made, arise out of a lease made between the appellant and the respondent and her late husband, Michael Nagle, dated the 16th April, 2002. By that lease the respondent and her husband leased public house premises known as the Avoca Inn in Avoca, Co. Wicklow, and certain outbuildings or premises, together with the ordinary seven day publican’s licence attaching to the Inn, to the appellant, for a term of 21 years from the 15th November, 2001, subject, inter alia, to the payment of a weekly rent which commenced at the rate of €761.84, and thereafter was to be in an amount fixed in accordance with the terms of the lease. The appellant went into possession of the premises pursuant to the lease, or was already in possession of them pursuant to the intended lease.
3. By an Ejectment Civil Bill dated the 2nd October, 2006 the respondent commenced proceedings against the appellant, seeking an order of possession of the premises on the basis, inter alia, that the rent had not been paid, that appropriate tax clearance certificates had not been provided, and nor had the applicable rates been paid, all in alleged breach of the terms of the lease. The respondent’s husband had died in the intervening period. Prior to the commencement of the proceedings, the respondent had served two forfeiture notices on the appellant specifying the amounts then alleged to be due, and in the proceedings claimed mesne rates thereafter.
4. The appellant entered a defence to the proceedings, claiming he had a good defence by reason of the fact that he had been overcharged for rent by the respondent since the commencement of the lease and had overpaid the respondent the sum of €23,830. He denied any rates were due and pleaded that tax clearance certificates had been provided. He counterclaimed for relief against forfeiture.
5. By Order made by the Circuit Court (O’Sullivan, J.) in the course of a hearing on the 5th February, 2008, that Court ordered that the respondent recover possession of the premises, the Avoca Inn, from the appellant. The Order cites that it was made “on consent”. The appellant was ordered to pay the respondent’s costs. Both parties were represented by legal advisors at the time, the appellant’s solicitors, Farrell & Co., being on record for him. A stay was placed on the order on terms, which, according to the Order, were the following:
(a) the defendant forthwith renew the intoxicating liquor licence in relation to the Avoca Inn;
(b) each weekly instalment of rent is paid to the respondent’s solicitor promptly on the Thursday of each week, as from the 7th February, 2008; and
(c) arrears of rent and mesne rates amounting to €57,655 (credit having been given for the above sum of €23,100) and the costs of the proceedings are paid in full within four months
but that in default of any of the foregoing execution should issue immediately, that is to say that the respondent would have possession of the premises. The stay, in my view, appears to be one whose terms attach in reality to the application for relief against forfeiture.
6. About one week later, on the 13th February, 2008, the appellant appealed the consent Order to the High Court under his own name, although his solicitors, Messrs. Farrell & Co., remained on record, and represent the appellant in this appeal. The basis for that appeal, and a subsequent application referred to below, was set out in an affidavit of the appellant sworn on the 25th March, 2008, which I consider important evidence before the learned High Court judge, because of its proximity in time to the date of the above Circuit Court order. The affidavit raised a number of complaints and made several allegations of breaches of the terms of the lease on the part of the respondent. The affidavit comprises nine closely typed pages, together with a significant number of exhibits. Apart from the introduction, under the title “Particulars of Appeal” it mentions the following: overpayment of rent, insurance, deposit, unauthorised sheds, rates, water rates, VAT on rents, improvements, premises, unpaid food and beverage bills, all allegedly being matters the appellant wished to raise. Arising further from these various headings, the appellant set out his counterclaim for a very substantial sum of money, certainly in excess of €400,000. However, the important content of the affidavit, in my view, is the part where the appellant refers to the Circuit Court hearing. He averred as follows:
“3. At a hearing before Judge Terence O’Sullivan of the Circuit Court on the 5th day of February, 2008, an order was made by consent relating to proceedings by the respondent against the appellant, a copy of which order is exhibited herewith and marked as “Exhibit B”. The Civil Bill referred to in the said order is exhibited herewith and marked as “Exhibit C”.
4. No oral evidence was given at the hearing of this action in the Circuit Court.
5. Notice of Appeal of the said order was lodged and issued on the 13th February, 2008, a copy of which is exhibited herewith and marked as “Exhibit D”.
6. The said notice of appeal has been served on the respondent, and in this regard I refer to letter dated 18th February, 2008, from W. R. Joyce & Co., solicitors acting for the respondent, a copy of which is exhibited herewith and marked as “Exhibit E”.
7. When the respondent’s action was heard before Judge O’Sullivan’s court I was informed by my solicitor that I had no option but to consent to the said order being made, as I was confined to the matters raised by me in my defence and counterclaim dated 12th January, 2007, a copy of which is exhibited herewith and marked as “Exhibit F”.
8. At the time I lodged my defence and counterclaim certain facts, upon which I have now come to rely, were not known to me – or the significance of these facts had not become apparent to me, and these matters are set out in the particulars of appeal to these proceedings which I would like to lodge in accordance with Order 61, Rule 8, of the RSC to submit fresh evidence.
9. It is my belief and my case that the respondent’s proceedings against me in the Circuit Court were misconceived, in that ….” (emphasis added)
Although the appellant averred thereafter, in his affidavit, that the respondent’s proceedings were misconceived against him, inter alia, on the basis that no rent was due because there had been an overpayment of rent, all other matters mentioned in this affidavit, apart from the averments cited above, are wholly unrelated to anything which occurred on the hearing before O’Sullivan, J. I particularly note that nowhere in that affidavit is there any allegation, or suggestion, or any hint even, that the appellant was vehemently against any settlement, or had notified either his own solicitor, in attendance on the day, or the solicitor for the respondent, that he did not wish to settle the Circuit Court proceedings, that he did not consent to the same, or that, in consequence of anything said to his solicitor, his solicitor had no authority to settle the proceedings on his behalf, or indeed anything else by way of questioning the role of his solicitor, or of the settlement.
7. By a Notice of Motion in that appeal dated the 31st March, 2008, the appellant also sought a variation of the Circuit Court order referred to above, based on the above affidavit, and sought liberty to submit new evidence for the appeal. The affidavit was replied to by the respondent, who, inter alia, averred as follows:
“I was represented at the hearing by Patrick Geraghty, S.C., and Mary Jo Butler, BL., and the defendant was represented by Oisin Murphy, solicitor. The case having been opened by senior counsel for the plaintiff, Mr. Murphy asked the Court for a short recess to discuss the matter with Mr. Geraghty; in the ensuing discussions a settlement was reached in the matter, and this was later in the day made the subject of the Court Order, made upon consent, mentioned in the Books of Appeal filed by the Defendant. Not only did the Defendant agree to the terms of the Order, but he went further by asserting to the Court that he would, from the sale of property in Cyprus which he hoped to conclude shortly, clear the arrears of rent earlier than the four months allowed.”
The respondent drew the Court’s attention to the fact that she was living on approximately €1,000 a month, by way of State widow’s pension, and that the payment of rent from the premises had ceased shortly after the death of her husband.
8. The appellant’s motion was refused by order of the High Court (Herbert, J.) dated the 7th April, 2008. The appellant’s full appeal from the Circuit Court was also refused by further Order of the High Court (Edward, J.) on the 20th May, 2008, and the Consent Order of the Circuit Court was affirmed. Both applications were refused on the basis that the order made in the Circuit Court was a final order made on consent, and that no appeal could, therefore, lie from the same.
9. The Circuit Court Order for possession of the Avoca Inn was executed on the 2nd July, 2008. On behalf of the respondent to this appeal, an application was made to the District Court for the transfer of the licence into her name, which was objected to by the appellant on the stated basis that she was an unfit person. That Order was made on the 16th July, 2008. The appellant appealed the dismissal of his objection, to the Circuit Court, appealed also from the grant of the transfer itself, and appealed against the refusal to grant a stay on the same, all of which were dismissed by order of the Circuit Court (White, J.) on the 30th October, 2008, who acknowledged the distress and financial hardship being endured by the respondent. The respondent had, it appears, been attempting to sell the premises to provide funds for her possible retirement. Although no appeal lies to the High Court from the order of White, J., the appellant nevertheless lodged a Notice of Appeal in respect of the same, despite the prior making of an Isaac Wonder order against him.
The High Court Proceedings
10. The next event which occurred after the above series of applications, appeals and orders dismissing the same, was the issuing of a Plenary Summons by the appellant against the respondent on the 9th October, 2009. In the Statement of Claim the appellant seeks orders, inter alia, in the terms of all the claims mentioned at the commencement of this judgment, the subject of the judgment and Order of the High Court under appeal to this Court.
11. The Statement of Claim was delivered on the 19th February, 2010. For the first time in any court documents, the appellant alleged that he did not instruct his solicitor to compromise the proceedings and, in fact, gave instructions to the contrary; that his solicitor, and the solicitor acting for the respondent, both knew that he had not given instructions to settle; that the respondent’s solicitor “shut his eyes” to the fact that the appellant had not authorised any settlement, and deliberately did not make the enquiries which he should have made; that that solicitor instead relied on the wording of unsigned terms of settlement surreptitiously prepared and not shown to the appellant at any time; that the settlement document was handed into court in circumstances where the solicitor for the appellant, and the solicitor for the respondent, deliberately and/or negligently concealed from the appellant the fact that they had together agreed a settlement without authority from him. All these claims are made against the respondent, although the legal basis for the same is nowhere evident on any of the pleadings. Neither the solicitor then acting for the appellant nor the solicitor for the respondent, is a party to the proceedings and neither has been sued by the appellant in any other proceeding, in respect of these matters. The statement of claim continues in somewhat the same terms, and in addition pleads, as against the respondents, breach of duty, negligence, trespass to land, to chattels, conversion and wrongful taking of electricity, failure to return monies and loss and damage in a sum in excess of €400,000,
12. The claim is fully defended by the respondent by Defence delivered on the 4th May, 2010, in which it is pleaded, inter alia, that the order of the Circuit Court of the 5th February, 2008 was made on consent. Further, it is pleaded that on the occasion of the making of that order:
“(i) As the terms of the settlement were being announced verbally by counsel for the plaintiff to the Court, the plaintiff intervened personally to tell Judge O’Sullivan that he did not need as long a stay as four months to pay the arrears of rent, as he, the plaintiff, had a property in Cyprus from which he would be able to realise the necessary monies;
(ii) Judge O’Sullivan asked the plaintiff in person if he agreed that the order was being made on consent, to which the plaintiff stated he did agree;
(iii) Judge O’Sullivan addressed the plaintiff in person and stressed to him that the payment of the weekly sum of €761.84 had to be paid on the Thursday of each week, and that if he failed to make any one such payment, the order for possession would issue against him. The plaintiff responded to the effect that he understood that this was so.”
13. Upon delivery of the Statement of Claim, and the Defence to the present proceedings, by Notice of Motion dated the 14th May, 2010, the High Court was requested to make an order striking out from the appellant’s Statement of Claim the several claims referred to at the commencement of this judgment, on the grounds that the same were frivolous and vexatious. That motion was grounded on the affidavit of the respondent to this appeal sworn on the 12th May, 2010, which affidavit was responded to by Ms. Angela Farrell, solicitor, sworn on the 9th July, 2010. That affidavit commences with the following averment:
“1. I swear this affidavit from facts within my own knowledge, save where otherwise appears, and where so appears, I say and believe that the same are true and accurate. I was the solicitor who had carriage of sale of the leasehold interest of the premises at Avoca Inn, County Wicklow.
2. I was also instructed in the Circuit Court matter of Ejectment Proceedings 493/06 taken against the plaintiff, Mrs. Nagle, the landlord, in October, 2006. …”
14. Nowhere in that affidavit does Ms. Farrell indicate she is swearing it on behalf of the plaintiff/appellant, but I take the affidavit to have been sworn and filed on his behalf, having regard to the second affidavit sworn by her on the 9th July, 2010. The affidavit of Mr. Murphy, referred to further below, was sworn in response to that first affidavit of Ms. Farrell.
15. By her affidavit sworn on the 9th July, 2010, lodged in the High Court in these proceedings, Ms. Angela Farrell, solicitor of the firm Farrell & Co., averred that Mr. Murphy, who had represented the appellant in relation to the above settlement, was her assistant at that time and had instructions only to “come off record”, but wrongly did not comply with his instructions, acted without authority or instruction; ignored her client’s instructions; misled the court and acted against the best interests of her client. She averred also to much other material of a similar nature relating to the conduct of Mr. Murphy, and of the solicitor for the respondent. The affidavit was not served on Mr. Murphy, but apparently came to his notice. Mr. Murphy, by affidavit sworn on the 22nd July, 2010, “wholly and utterly” rejected the account given by Ms. Farrell, and, inter alia, described it as being a work of fiction. Mr. Murphy detailed what, in his recollection, had occurred during the course of the proceedings, by reference, inter alia, to written materials and oral information furnished by him to Ms. Farrell.
16. That motion came on for hearing in the High Court before Murphy, J., first on the 20th July, 2010 and was adjourned to 27th July, 2010, inter alia, to permit Mr. Murphy to swear an affidavit. Judgment was delivered on an ex tempore basis, both parties having been represented by counsel. The learned High Court judge granted an order in the terms of paragraph 1 of the Notice of Motion striking out all of the above mentioned claims from the Statement of Claim, but refusing to grant any Isaac Wonder order (as had also been sought). An order to the above effect was made on the 28th July, 2010.
17. The Notice of Appeal was thereafter filed on the 18th August, 2010. There was a dispute between the appellant and the respondent as to the note of the judgment of the learned High Court judge, and notes submitted by each solicitor were furnished to the learned High Court judge for consideration. Having regard to the distinct difference in the notes, the learned High Court judge furnished an independent note of approval of a record of the High Court proceedings. signed by him, on the 28th February, 2011. It is sufficient for the purposes of this judgment to say that in his own note the learned High Court judge states that the note filed on behalf of Farrell Solicitors, dated 7th February, 2011, who acted on behalf of the appellant, “is more in the nature of submissions than a record of what occurred in the High Court”, whereas the note of the judgment of the High Court made on behalf of the respondent by W. R. Joyce & Co., solicitors, and dated 28th January, 2011, is “more comprehensive than that of Farrell & Co., in particular in relation to the role of Mr. Oisin Murphy, solicitor of Farrell & Co.”. I agree. The learned High Court judge set out in his own record what had occurred on the application before him and how the merits of the application were dealt with. I am satisfied to rely on that note, taking into account also the notes furnished by both solicitors.
The Appeal
18. On the hearing of this appeal Ms. Angela Farrell, solicitor, represented the appellant, and Mr. Geraghty, senior counsel, with Ms. Mary-Jo Butler, junior counsel, appeared on behalf of the respondent. Ms. Farrell made wide-ranging submissions on the merits of the Circuit Court proceedings, as it appeared to her they might have been argued had the matter proceeded to a full hearing, as she contends ought to have occurred. These included the fact that there was no rent due on the issuing of the Ejectment Civil Bill, if proper allowances had been made in respect of the same by the landlord/respondent, and/or her late husband; that there was no authority vested by her in her former employee, Oisin Murphy, to settle the proceedings; that insofar as her instructions were concerned - she having acknowledged that she was not present in the Circuit Court - her client, the appellant, had not given instructions to Mr. Murphy to settle; and that any ostensible authority in Mr. Murphy was withdrawn from Mr. Murphy by instruction given directly to him by the appellant.
19. On a related, but separate basis, Ms. Farrell submitted that, in law, any ostensible authority which Mr. Murphy had to settle the proceedings having been withdrawn, that absence of authority had been clearly made known to the solicitor for the respondent, because her client had informed her that he, in turn, had informed that solicitor that he did not intend to settle the proceedings. Further, there were matters which, had the Ejectment Civil Bill proceedings proceeded to a full oral hearing, the appellant would have been presented to the Court, which would have made it clear that a substantial counterclaim existed, of the type which has now been pleaded in the High Court proceedings.
20. Ms. Farrell further, in reliance on statements or information made available to her from her client, and from her client’s daughter, but nowhere sworn to, suggested that had the learned High Court judge permitted her, or the appellant, to swear an affidavit in response to the affidavit sworn by Oisin Murphy, all these matters and others would have become clear, there would have been certainty in relation to the absence of any authority in Mr. Murphy, or any authority upon which the respondent’s solicitor could rely, but that the learned High Court judge had wrongly refused an adjournment to allow an affidavit to be sworn in response to that of Mr. Murphy. To clarify how this arose, it is necessary to say something, very briefly, about the affidavit sworn by Mr. Murphy. Although very serious allegations of impropriety and of acting without authority were made against him by Ms. Farrell in her affidavit, that affidavit was not served on Mr. Murphy, who, as mentioned above, is not a party to these proceedings. He apparently came to hear about the affidavit, and on the first return date of the Motion, Mr. Murphy, through his counsel, Mr. Faughnan, sought liberty from the court to file an affidavit, both for the purposes of assisting the court, and also for the purposes of rebutting the allegations made against him by Ms. Farrell which were on record in the High Court proceedings. The learned High Court judge intimated that, since the role of Mr. Murphy in the Circuit Court proceedings appeared to be pivotal to the resolution of the matter before him, it was important that Mr. Murphy be permitted to file an affidavit. That affidavit was sworn, as mentioned above, on the 22nd July, 2010, and served, and the matter came on for hearing on the 27th July, 2010.
21. Both parties were represented by counsel on that occasion, the appellant by Mr. Goldberg, senior counsel, and the respondent by Mr. Geraghty, senior counsel, and by junior counsel. Although the note prepared by Farrell & Co., suggests that the learned High Court judge refused to allow the appellant an adjournment to reply to the affidavit of Mr. Murphy, and refused to permit “any evidence from Mr. Charalambous, either by affidavit or otherwise”, the note of the learned High Court judge indicates that, so far as he could recollect, no application was made by counsel for an adjournment. No reference is made to an application for such an adjournment in the notes prepared by the solicitors on behalf of the respondent either, and I am satisfied that on the balance of probabilities no formal application for an adjournment was made. I am further satisfied that even if Ms. Farrell had sworn a further affidavit, this would not have brought matters any further and would simply have led to a situation where, as between Ms. Farrell and Mr. Murphy, the conflict between them would be further highlighted.
22. On the law, the learned High Court judge was obliged to consider the position which had arisen in the Circuit Court and had seven affidavits before him, which he specifically refers to in his note. He noted, in particular, the role of Mr. Murphy in the negotiation of the settlement in the Circuit Court and that he had appeared “as a courtesy to the court” and had been represented by counsel before him. The learned High Court judge also noted that Mr. Geraghty, senior counsel, who had appeared for the respondent in the Circuit Court, was satisfied that Mr. Murphy had authority to settle the matter.
23. Murphy, J. noted also that he had considered the submissions of senior counsel, Mr. Goldberg, on behalf of the appellant, and recognised that the mater was “somewhat charged”, given the conflict of evidence between Ms. Farrell and her former assistant Mr. Murphy. He mentioned, critically, the following two matters:
“Central to the application to the court is undoubtedly the order made by Judge O’Sullivan on the 5th February, 2008. The learned trial judge referred to the appearance of Patrick Geraghty, S. C. (instructed by W. R. Joyce & Co., solicitors) for the plaintiff Margaret Nagle and the appearance of Oisin Murphy, solicitor (of Farrell & Co., solicitors) on behalf of the defendant (in the order made). The order further recited that the decree and orders following could be granted and made upon consent.”
The learned High Court judge concluded as follows:
“The Court is satisfied that Mr. Oisin Murphy had implied authority to conclude the negotiations; that instructions were not withdrawn. On the basis of oral and affidavit evidence before this Court, the Court is satisfied on the balance of probabilities that Mr. Charalambous consented to the order being made”.
24. Having regard to the foregoing, the question which arises on this appeal is whether or not the learned High Court judge misdirected himself in law in failing to apply the appropriate tests, or principles, to the examination of the issues before him, or in respect of the conclusions he reached, on the motion.
25. Ms. Farrell, on behalf of the appellant in this appeal, submits that as to the note of the consent or settlement, prepared and written by Mr. Geraghty, senior counsel, that this was (a) unsigned by her client; (b) was handed into court inappropriately; (c) was arranged and agreed without the knowledge of the appellant; and finally (d) that it is a note or memorandum within the provisions of s.2 of the Statute of Frauds, but not executed by the party being charged by its content. Not having been signed, it cannot bind him. The learned trial judge had misdirected himself in that regard.
As to the last of these, I am satisfied that there is no basis in law for finding that a settlement agreement of the type existing in this case, the terms of which are handed in to Court, frequently for the convenience of the Court, but which could have been recited by counsel orally for the purposes of asking the Court to make an Order in the terms of the consent agreed, is not a note or memorandum for the purposes of the Statute of Frauds, and that there is no good basis in law for the argument made on behalf of the appellant on that ground.
26. Ms. Farrell further places considerable emphasis on the fact that the note was unsigned, but cites no authority for any obligation that it should be signed, or that in law it has no effect unless it is signed, apart from the Statute of Frauds point, and I am satisfied that this too is not a basis upon which to find that the learned High Court judge reached an incorrect conclusion in law, and I dismiss that ground too.
27. Ms. Farrell made several other submissions which do not appear to me to be germane to the issue under consideration here. They relate again to the role of Mr. Murphy, and his instructions on her behalf; to what she considers to have been the understanding of the appellant on the day when the order was made; to the question as to whether or not her firm was really on record for him or were merely what she calls “technically” on record, and other non-critical issues. In fact, her firm has never come off record in the entire course of the two sets of proceedings, whether the original Circuit Court proceedings or the present High Court proceedings.
28. As to the contention that this was a settlement made without the knowledge of the appellant, the learned High Court judge had before him ample evidence upon which to conclude both that the appellant knew the content of the settlement and understood it; that the solicitor acting on behalf of the appellant had ostensible authority to conclude the settlement; and that his instructions were not withdrawn. I am satisfied, therefore, the learned High Court judge had ample material before him upon which to conclude the settlement was a consent settlement, and that the Order of the Circuit Court (O’Sullivan, J.) was a valid Consent Order, including the affidavit evidence of the appellant himself sworn a short time after the Circuit Court Order was made.. That being so, the next matter to be considered and applied is the law relating to final orders, including Consent Orders, and whether the content of proceedings leading to the making of such an Order can be relitigated. The law relating to final orders is helpfully found in the case of Belville Holdings v. Revenue Commissioners [1994] 1 I.L.R.M., as referred to in McG (G) v W (D) IESC 31st March, 2000, in which the fundamental principle relating to any change in a final order is set out in the judgment of Denham, J., invoking English case law to the following effect:
“The position and principles appear, however, to be accurately stated in the judgment of Romer J. in Ainsworth v. Wilding [1896] I Ch 673, where, at p.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:
Having referred to the decision of the Court of Appeal in In re Swire 30 ChD 239, Romer J quoted from the judgments in that case as follows at p.678:
‘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 what 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 not.’
And Bowen LJ says: “An order, as it seems to me, even when passed and entered, may be amended by the courts 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.”
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.”
29. Final orders are just that – final and conclusive. They may not be altered except in circumstances such as indicated in case law. The circumstances permit alterations which are intended accurately to reflect what was actually decided, and which the order sought to be amended ought to have said, had it been drawn correctly. There were no proper grounds advanced, in the present case, to set aside the Consent Order on a basis recognised by law. There was and is no claim of fraud pleaded in the present proceedings, although Ms. Farrell in answer to questions from the bench on this point appeared to demur slightly and to reserve her position. That is not an acceptable approach, in my view, since if it is intended to plead fraud, the pleadings must recite the facts which give rise to the allegation in terms which make it absolutely clear that such a plea is being pursued. Such a plea is not disclosed in this case on the pleadings.
30. Having regard to the foregoing, I am satisfied that the learned High Court judge could, both on the law opened to him and on the material evidence before him, properly conclude that the Circuit Court Order was made with the consent of the appellant. It follows, on the law, that the two orders of the High Court (Herbert, J. and Edwards, J.) were orders properly made on the basis of the materials before them, and cannot be set aside. Having regard, further, to the fact that the original order was made with the consent of the appellant, there could be no valid plea for an order setting aside “the purported settlement of the proceedings” since they were settled on consent. Nor could there be an order made for the purposes of remitting “the said proceedings” to the Circuit Court, being the proceedings the subject of a final consent order. Finally there could not be an order for possession, nor any order for specific performance of the lease, the subject matter of the settled Circuit Court proceedings.
31. In the circumstances, the order made by the learned High Court judge for the relief claimed at paragraph 1 of the Notice of Motion, filed on behalf of the respondent to this appeal, as defendant in the High Court proceedings, was an order which the learned High Court judge was entitled to make and which was properly and lawfully made.
32. I would dismiss the appeal and affirm the Order of the High Court.
