Judgment: 2002-07-31 · Court archive

Supreme Court upholds correction of erroneous negligence finding in McMullen case

Supreme Court ·

Who, what, where, when and why

Who
  • Michael Colin Geoffrey McMullen (Plaintiff)
  • Noel Clancy (Defendant)
What

Supreme Court upholds correction of erroneous negligence finding in McMullen case

Where

Places mentioned in the report

  • High Court
  • Supreme Court
When

Judgment:

Why

Reasons reported in the judgment

The Supreme Court has upheld a High Court decision correcting an earlier court order which had mistakenly recorded a finding of negligence against barrister Noel Clancy.

The Supreme Court has upheld a High Court decision correcting an earlier court order which had mistakenly recorded a finding of negligence against barrister Noel Clancy.

Michael Colin Geoffrey McMullen had brought proceedings against Clancy which were tried in the High Court in July 1999. In a reserved judgment delivered that September, Ms Justice McGuinness dismissed McMullen’s claim. However, the formal order drawn up afterwards also stated that the court had found Clancy negligent.

That wording did not reflect the judgment. The High Court had rejected the negligence claim as statute-barred and had also concluded that, even if negligence existed, no damage capable of supporting the claim had resulted.

The error remained in the formal order for more than a year. In January 2001, Clancy successfully applied under Order 28, rule 11 to remove the negligence finding and make the order correspond with the actual judgment.

McMullen appealed. He argued that there had been no accidental error and, alternatively, that Clancy’s delay in seeking correction amounted to acquiescence or estoppel. He also said he had relied on the original order when preparing his separate substantive appeal.

Mr Justice Murray rejected those arguments. He said courts have both an express and inherent power to correct orders which do not accurately record what was actually decided. Delay alone does not remove that jurisdiction. The relevant question is whether correction would cause irremediable unfairness or prejudice.

The court found no such prejudice here. McMullen remained entitled to pursue his substantive appeal and could amend his notice of appeal and written submissions to reflect the corrected order.

The Supreme Court also rejected his argument that Ms Justice McGuinness lacked authority to amend the order after her appointment to the Supreme Court. The court said there was no basis for finding that she had acted improperly in sitting in the High Court to deal with a matter arising from proceedings she had tried.

McMullen’s appeal was therefore dismissed.

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