McMullen v. Clancy [2002] IESC 61 (31 July 2002)

McMullen v. Clancy [2002] IESC 61 (31 July 2002)

The High Court was correct to amend its order under Order 28 rule 11 to remove the erroneous finding of negligence, as the order did not reflect the judgment actually delivered. Delay in seeking amendment does not bar the court's jurisdiction unless prejudice or inequity would result, which was not established here. The judge was entitled to sit in the High Court to amend her own order.

Citation
[2002] IESC 61
Parties
Plaintiff/appellant: Michael Colin Geoffrey McMullen; Defendant/respondent: Noel Clancy
Jurisdiction
Ireland
Judgment Date
31 July 2002
Procedural Posture
Civil Appeal / Appeal From High Court Order Amending Previous Order Under Order 28 Rule 11, Rules of the Superior Courts
Outcome
Appeal dismissed
Legal Topics
Correction of Court Orders, Clerical Error, Estoppel, Delay in Seeking Amendment, Judicial Capacity
Civil Procedure Correction of Court Orders Clerical Error Estoppel Delay in Seeking Amendment Judicial Capacity

Case Brief

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Parties

Michael Colin Geoffrey McMullen

Plaintiff/appellant

Noel Clancy

Defendant/respondent

Procedural Posture

Civil Appeal / Appeal From High Court Order Amending Previous Order Under Order 28 Rule 11, Rules of the Superior Courts

Legal Issues

  1. 1 Whether the High Court was correct in amending its previous order to remove a finding of negligence against the Respondent under Order 28 rule 11 due to clerical error
  2. 2 Whether delay or estoppel bars the amendment of a court order under Order 28 rule 11
  3. 3 Whether the judge who had been elevated to the Supreme Court could properly sit in the High Court to amend her own order

Ratio Decidendi

The High Court was correct to amend its order under Order 28 rule 11 to remove the erroneous finding of negligence, as the order did not reflect the judgment actually delivered. Delay in seeking amendment does not bar the court's jurisdiction unless prejudice or inequity would result, which was not established here. The judge was entitled to sit in the High Court to amend her own order.

Court Disposition

Appeal dismissed

Orders

  • Appellant entitled to amend his Notice of Appeal and make further written submissions; Respondent to have liberty to reply.