Union V-tex Shirt Factory Ltd v. Union V-tex Realty Ltd and Others

CACV000048A/1983

Practice and Procedure - Court of Appeal - an order is perfected when it has been signed, sealed and entered - if it has been incorrectly drawn up, it can be amended, but it is none the less a perfected order - an order allowing the appeal having been perfected, the court had no jurisdiction to re-open the appeal.

BETWEEN

(Action No. 219 of 1976)

BETWEEN

(Action No. 602 of 1976)

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Coram: Sir Alan Huggins, V.-P., Yang and Fuad, JJ.A.

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. We are at present concerned only with the application to re-open the appeal and, as to that application, we have heard full argument so far on only one point.

2. The matter arises like this. The judge in chambers declined to strike out these actions for want of prosecution. On 30th June an appeal against his decision was allowed and we said that we would give our reasons later. Counsel raised the matter of costs but it was agreed that that matter should stand over until the Reasons had been delivered. On 29th July our Reasons were handed down. We made no order nisi as to costs because we understood that counsel might wish to address us. There followed discussions and correspondence between counsel and solicitors and it was agreed between them that the court be asked to make an order that costs follow the event. On 27th September the solicitors for the 5th Defendant, on behalf of all the defendants concerned, presented for signing, sealing and entry an order that the appeal be allowed and that the Respondent pay the costs. The draft order had been approved by the court clerk but no order as to costs had in fact been made. The order was signed, sealed and entered in the form in which it had been approved. The question is whether the order disposing of the appeal has been perfected. If it has, it is common ground that the court has no jurisdiction to re-open the appeal.

3. Mr. Littman argues that, as the court had not made any order as to costs, the purported perfection of the order allowing the appeal was invalid. It was inherent in his argument that until the matter of costs had been dealt with there could be no perfected order. He further submitted that an order drawn up otherwise than in accordance with the intention of the court was not a perfected order. I cannot accept these arguments. The practice of the Court. of Appeal is that its orders should be signed, sealed and entered in the records of the court. An order so signed, sealed and entered is perfected. That means that unless and until it is corrected it is evidence of what the court has ordered. Human frailty being what it is an order can be wrongly drawn up, as was done here. Thus a perfected order may be something less than perfect. A perfected order which does not conform with the intention of the court can be amended In re Swire (1885) 30 Ch. D. 239. What was the order made by the court on 30th June? My endorsement of the order is: "Appeals allowed. Claims struck out. Reasons later". It was not a mere indication of an order that we pronounced on that date: it was an order that we were making. Apart from the order as to costs, that order was in the terms of the order drawn up. There was no order for payment of the appellants' costs: the costs were reserved. Strictly that is how the order should have been drawn up and a further order should have been drawn up when the matter of costs was dealt with. That does not mean that the order drawn up was not perfected: it was perfected, but it was incorrect and could be amended.

4. I do not agree that no order allowing an appeal could properly be drawn up until the costs had been dealt with. Minnesota Mining & Manufacturing Co. v Johnson & Johnson Ltd. 1977 3 F.S.P. 210, as reported, is not conclusive evidence to the contrary, and in any event is not binding on us. There the court did not, at the conclusion of the hearing, make a final order disposing of the appeal because the parties wished to consider the terms of that order. The costs were also reserved. The report of the adjourned hearing deals only with the costs which had been reserved. It does not necessarily follow that no order could have been perfected until the costs had been finally disposed of. However, Buckley, L.J. did say that in his view no order could have been drawn up "before the present hearing". He did not say why that was, but I think it was because the court had made no order. It had reserved the order, both as to the appeal itself and as to the costs, for further discussion. If no order had been made, no order could be drawn up. Buckley, L.J. also emphasised that no order for costs had been made until the further hearing. For my part I think that, if there had been a previous order disposing of the substance of the appeal, there was no reason why that order should not have been drawn up. If and in so far as that decision holds to the contrary I would not follow it.

5. It. is contended that this conclusion would be inconvenient and would produce procedural difficulties as to the time limit for further appeal. If there be such difficulties, I do not, think they prevent the perfection of an order which has in fact. been made. What has been perfected is, indeed, not an order finally disposing of the appeal - if that means all the matters arising on and connected with the appeal - but it is the order which was made on 30th June, and that is all it purports to be.

6. Mr. Littman fairly urges us not to allow a technical point of this kind to bar him from attempting to raise an argument which, he submits, will allow better justice to be done. Interest reipublicae ut sit finis litium.

7. I think we shall have to hear counsel further as to what order we should now make - whether the order should stand or whether we should amend the order in the manner which I indicated in argument.

Yang J.A.:

8. My Lord Huggins has kindly acquainted me with the reasons of his judgment. I respectfully agree with him. Speaking for myself I am unable to see any difficulty in treating the Order of the 27th September 1983 as being severable so that the part dealing with the merits of the appeal remains a good and perfected order whilst the part dealing with costs may be treated as an error. In this connection I would simply refer to the judgment of Lord Justice Bowen in Re Swire (1885) 30 Ch.D. 239, at 247, where he said:

"I think the true view is, as stated by the . Lord Justice Cotton, that every Court has inherent power over its own records as long as those records are within its power, and that it can set right any mistake in them. It seems to me that it would be perfectly shocking if the Court could not rectify an error which is really the error of its own minister."

9. The rectification of the Order of the 27th September 1983 should present no difficulty.

Fuad, J.A.

10. I agree that this motion should be dismissed but in view of the importance of this decision to the Plaintiffs I feel I should add a few words of my own.

11. When the decision of the Court of Appeal was announced on the 30th June, it was that the appeal would be allowed and the consolidated actions dismissed for want of prosecution. The Order drafted by the solicitor for one of the successful parties correctly reflected this decision and was duly approved by the Registrar, signed by him and impressed with the court seal, the proper fees having been paid. Whether one uses the formula "passed and entered" or "perfected" or "signed, entered or otherwise perfected" there was nothing left to be done, and in my judgment the Order stands unless and until it is corrected. It is true that the Order went too far in that it went on to direct who should bear the costs both before Mantell J. and before us, but everything up to the last six lines of the Order that appears before the words "struck out" was correct. The Order could have been, and still can be, corrected on a proper application, either under 0.25 or under the inherent jurisdiction of the Court; and the error, which was understandable in all the circumstances, in my view does not prevent that part of the Order which does accurately reflect the decision of this Court from being operative.

12. I think that it would be wrong, and wholly unrealistic, to seize upon this error and, on such a slender basis, to seek to exercise the extraordinary jurisdiction of the Court to reopen the hearing of the appeal which was fully argued before us by, if I may say so, very able Counsel.

13. I would only say about the Minnesota Mining case that I am by no means persuaded that it is on all fours with the situation we have before us.

14. It is for these reasons that I have agreed with my learned brothers.