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1. This matter comes before the Court by way of Notice of Motion dated the 24th day of January 2000 seeking the following relief's:-

2. The Motion was grounded as an Affidavit sworn on 24th January 2000 by Stuart Stein, the Solicitor for the Defendant.

3. It was specifically brought to my attention that there was no Replying Affidavit before the Court. This was clearly and adequately explained by the attitude taken by the Plaintiff’s Counsel in his replying submissions. Suffice it to say that while much of the matter in the Grounding Affidavit is correct, it is not a totally correct record of the hearing of the Circuit Appeal heard by me on 17th January, 2000 and in particular fails to record fully or accurately why the appeal failed and other important elements of the Plaintiff’s evidence. To seek to enumerate the differences in my recollection ( against which I checked my Court Notebook, since the hearing of the Motion on 21st February 2000) would be to go behind the judgement pronounced in open court on 17th January 2000.

4. The course of the hearing of the Circuit Appeal was that at the end of the Plaintiff’s case an application was made for a direction, in the course of which, Mr Brady S.C. for the Defendant cited and opened several legal authorities which, inter alia, included Boyle-v-Lee [1992] 1 I.R. 552 (which refers to and includes quotations from the judgement in Mulhall -v- Haren [1981] I.R. 364. The Supreme Court in Boyle -v- Lee had referred to them the case of Black -v- Kavanagh which is also referred to by Keane J. ( as he then was) in Mulhall -v- Haren. Having considered the submissions. During the Luncheon interval on the day of the hearing I considered the submissions and consulted the legal authorities and later refused the direction.

5. The Defendant having given his evidence, which I found to be not overburdened with merits, counsel made their closing submissions. I then pronounced judgement indicating my views (as far as duty obliged and clarity permitted on some of the Defendants oral evidence, which I did not accept) and the documents presented to me in evidence. There were in my judgment matters that fell outside the mere usage of the words “subject to contract” and solicitor’s implied powers involved in the case, and distinguished it from the embrace of the decision in Mulhall -v- Haren. On the pronouncement of the terms of the Order, Counsel for the Defendant participated in the formulation of those terms in relation specifically as to costs and said counsel specifically sought ‘liberty to apply’ (which expression refers to the facility or permission of the litigant(s) to return to Court for assistance in the working out of the Order of the Court). At no stage of the proceedings, or time when the parties were in Court was any request or suggestions of a request made for a case stated.

6. In support of the application to review I was referred to Re Harrison’s share under a Settlement, Harrison -v- Harrison and others. Re Ropers Settlement Trusts. Roper -v- Roper and others [1965] 1 A.C 185 wherein the Court of Appeal held that a judge was entitled to recall an Order (pronounced by him) on his own initiative. In that case the High Court judge had made orders, but before they had been drawn up and entered the House of Lords held that the High Court had no jurisdiction to make such order. In those circumstances, i.e. the declared want of jurisdiction, the judge recalled his orders.

7. It was not seriously contested by Mr E. Glesson, B.L., for the Plaintiff that as between the pronouncement of judgment in open court and the perfection of the Order, the trial judge had jurisdiction to entertain an application, such as the present, but that it should be a matter of rarity and that in the interests of justice and finality of legal proceedings it ought not lightly to be entertained or exercised. However, the Defendant contends that I should harken to and follow the judgement of Jenkins, L.J delivering the judgement of the court in Harrison’s case at p192 of the report, which is that:-

8. Earlier in the judgement ( p. 190) reference is made to “a judge who has in his belief delivered an erroneous judgement”. Because of the submission made on the hearing of this motion that the Defendant contended that he had not had a fair trial ( which I did not and do not accept or believe to be the case). I nonetheless specifically adjourned the hearing of this motion to (1) consider my court notes (2) to reflect on my recollection of the hearing and (3) to consider carefully counsel’s submissions and (4) to bear in mind the finality of an order of the High Court exercising its appellate function in a Circuit Court appeal. Having done so, I say that I had and have no doubts as to the correctness of my decision on the basis of the evidence adduced before me and I do not believe my decision to be erroneous.

9. The Defendant also relied in the case of Belville Holdings -v- Rev . Commissioners [1984] 1 LRM 29, a decision of the Supreme Court, which as summarised in the headnote of the report at p.31 as follows (inter alia) :-

10. Counsel differed on whether the instant application came within ‘special and unusual circumstances’. In my judgement the Belville case is distinguishable from the instant case in that Finlay CJ noted as follows at page 36 of the report:-

11. Finlay CJ went on to note passages from the judgments in the Court of Appeal in In Re. Swire, (1885) 30 Ch. 239 which had been quoted by Romer J. In the Ainsworth case, and then continued with his own judgment thus -

12. In the instant case, my order is in draft form and correctly and accurately records my decision as pronounced in open Court.

13. Counsel for the Defendant on this motion cited other cases touching upon the matters in the trial. In all the circumstances, I do not consider it to be correct to rehear or consider new matters “visited” during the course of the trial.

14. In the course of any consideration of the basis upon which the motion is founded (viz the inherent jurisdiction of the Court). I have considered the judgment of Costello J. In Barry -v- Buckley , [1981] I.R. 306. Likewise on the question as to the time and circumstances in which a case should be sought and/or stated ( Doyle -v- Hearne , [1987] I.R. 601), and in particular to the judgment of Finlay CJ at page 608, where he states-

15. “I would also adopt the views of Walsh J in the same case “[Dolan -v- Cork Exchange, [1975] I.R. 315]” as to the stages at which a question of law for determination by this Court may arise and as to the undesirability in some instances at least of forcing the judge seeking the assistance of this Court or a question of law to hear and reach decision (sic) on all the facts before raising the question. Some of those statements are particularly referable to the position of a High Court Judge hearing an appeal from the Circuit Court as being the ultimate court to appeal but they are equally applicable mutatis mutaudis, in my view, to the hearing of a case by the Circuit Court.”

16. Furthermore, on the question of stating a case after judgment (accepting the differences in (a) time factors, and (b) the fact that in the instant case the court order is in draft and is not perfected and issued) I have considered the WJ Prendergast & Son Ltd. -v- Carlow County Council , [1990] 2 I.R. 483 regarding the provisions of S.39 of the Courts of Justice Act, 193

17. Although these authorities were not referred to or opened to me I considered them lest they might have contained anything of assistance to the Defendant, notwithstanding my view of the facts, beliefs and judgment, but this they do not.

18. I dismiss the appeal application.