Kirkconnell v Cook-Bodden

• Jurisdiction: Cayman Islands
• Judge: (Smellie, J.)
• Judgment Date: 14 November 1996
• Court: Grand Court (Cayman Islands)
• Date: 14 November 1996

Grand Court

(Smellie, J.)

KIRKCONNELL

and

COOK-BODDEN

P. Lamontagne, Q.C. and C.C. Adams for the applicants;

A. Turner and Miss S.J. Collins for the respondent.

Cases cited:

(1) -Abbott v. Abbott, [1931] P. 26; (1930), 144 L.T. 598.

(2) -Chanel Ltd. v. F.W. Woolworth & Co. Ltd., [1981] 1 W.L.R. 485; [1981] 1 All E.R. 745, distinguished.

(3) -Cristel v. Cristel, [1951] 2 K.B. 725; [1951] 2 All E.R. 574, dicta of Denning, L.J. applied.

(4) -Ford-Hunt v. Ragbhir Singh, [1973] 1 W.L.R. 738; [1973] 2 All E.R. 700.

(5) -Hall v. Burnell, [1911] 2 Ch. 551; [1911–13] All E.R. Rep. 631.

(6) -Jordan v. Norfolk County Council, [1994] 1 W.L.R. 1353; [1994] 4 All E.R. 218, considered.

(7) -Lewis v. Daily Telegraph Ltd. (No. 2), [1964] 2 Q.B. 601; [1964] 1 All E.R. 705, dicta of Pearson, L.J. applied.

(8) -Preston Banking Co. v. Allsup & Sons, [1895] 1 Ch. 141.

(9) -Purcell v. F.C. Trigell Ltd., [1971] 1 Q.B. 358; [1970] 3 All E.R. 671, considered.

(10) -R. v. Cripps, ex p. Muldoon, [1984] Q.B. 686; [1984] 2 All E.R. 705, dicta of Donaldson, M.R. applied.

(11) -Rankine v. Caribbean Utilities Co. Ltd., 1988–89 CILR 272; further proceedings (Grand Ct.), unreported.

(12) -Somalia (Republic) v. Woodhouse Drake & Carey (Suisse) S.A., [1993] Q.B. 54; [1993] 1 All E.R. 371.

Legislation construed:

Grand Court Rules, O.4, r.3(1): The relevant terms of this paragraph are set out at page 335, lines 24–36.

O.20, r.11: ‘Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on motion or summons without an appeal.’

Civil Procedure-judgments and orders-correction of errors-slip rule-under Grand Court Rules, O.20, r.11, court may vary order only to rectify clerical error or misstatement of court”s intention

Civil Procedure-judgments and orders-interlocutory order-variation-court has inherent jurisdiction to vary procedural order, e.g., by stay of related proceedings or severance of previously consolidated causes, if significant change in circumstances requires it for better conduct of litigation-‘liberty to apply’ implied in purely procedural orders if not expressly stated

Civil Procedure-consolidation of actions-severance-under Grand Court Rules, O.4, r.3(1) court may sever causes previously consolidated under O.4 or inherent jurisdiction for more efficient conduct of litigation-stay of proceedings may be alternative procedure

The applicants applied for the variation of interlocutory orders in proceedings relating to the administration of an estate.

Orders were made consolidating two causes in proceedings concerning land which the respondent administrator had transferred from the estate into his own name, each order giving liberty to apply. In one cause, reported at 1990–91 CILR 23, the applicants required the respondent to account for his past dealings with one piece of land and sought to restrain his future dealings with it; in the other, concerning a second property, the court was asked to construe a deed of gift in favour of named beneficiaries which had been confirmed in the deceased”s will. A further order required the consolidated action to be heard before a separate petition by the applicant for the respondent”s removal as administrator of the estate.

After those orders had been made, the respondent disclaimed ownership of both pieces of land, returning the first to the estate, and offering to do the same with the second. Consequently, the applicants amended their applications to seek orders that the trusts contained in the deceased”s will be put into effect by the sale and ultimate distribution of the proceeds of the first piece of land (once the beneficiaries had been ascertained) by their attorneys, and that beneficial ownership in the second piece of land be vested in the beneficiaries named in the deed of gift, the respondent to hold the land for them on trust.

They also applied for the two causes to be deconsolidated and heard separately after the petition for the respondent”s removal on the basis that

there was no longer any common issue in the two actions and many of the questions which their original applications had sought to address would thereby be better resolved. The respondent opposed the prior hearing of the petition on grounds of jurisdiction.

The applicants submitted that (a) the orders for the consolidation of two causes and for the hearing of their petition to remove the respondent subsequently could be varied (i) under the Grand Court Rules, O.20, r.11, the ‘slip rule,’ which permitted the correction of any order which did not reflect the court”s true intention; or (ii) under the court”s inherent jurisdiction to alter an interlocutory order in the light of a significant change in circumstances (in this case the respondent”s concessions as to ownership of the land) requiring a different procedure to be adopted for the more efficient conduct of the litigation, even if this affected substantive issues, and particularly if the order gave ‘liberty to apply’; and (b) the court could, in any event, determine the sequence in which different causes were to be heard (by severance and stay of proceedings) as it saw fit, under O.4, r.3(1), whether or not an order had already been made under this rule or the court”s inherent jurisdiction.

The respondent submitted that (a) the court had no power to vary the orders (i) under the slip rule, since there was no clerical error or confusion as to its intention at the time they were made to justify their correction; or (ii) under the court”s inherent jurisdiction, since inter-locutory orders were intended to be as conclusive of their subject-matter as final orders and the applicants could not seek to alter the substance of an order under the pretext of varying the procedure by which it was to be carried out, for which purpose ‘liberty to apply’ had been given.

Held, varying the orders in the manner requested:

(1) Since there was no clerical error or ambiguity of purpose in the interlocutory orders, the court had no power to alter them under the O.20, r.11 ‘slip rule,’ which existed only to rectify accidental omissions or misstatements of the court”s intentions (page 330, line 44 – page 331, line 9; page 332, lines 10–13).

(2) The court could, however, under its inherent jurisdiction to control the procedure by which its orders were carried out, vary an interlocutory order expressly or impliedly giving ‘liberty to apply’ if a substantial change of circumstances had occurred since the order had been made. ‘Liberty to apply’ could be inferred in any order which merely set the procedure for the disposal of substantive issues, allowing variation where the better conduct of the litigation required it (page 334, lines 20–39; page 335, lines 14–20).

(3) Furthermore, the court was able to alter the sequence in which different connected causes were heard by a stay of proceedings under the Grand Court Rules, O.4, r.3(1) and, if necessary, to consolidate or sever causes to enable the most efficacious handling of the issues arising in them. Accordingly, the orders would be varied to allow the

severance of the two causes in question and the prior hearing of the petition to remove the respondent (page 335, lines 21–42; page 337, lines 5–21).

SMELLIE, J.: This is yet another of the many applications and steps
taken in these causes which have a long and complex history. Orders are
now sought to vary certain earlier orders made in them.
40	Background
Cause 463 of 1984 is grounded in a petition to remove the respondent
as the administrator of the estate of William Eden Snr. (‘the estate’). He
was so appointed by order of this court in November 1979. Before the
petition in that action could be heard, further suits were filed in Causes
45	103 of 1986 and 236 of 1991.

In Cause 103 of 1986 relief was sought by way of orders for the
ascertainment of the beneficiaries of the estate, for accounts from the
respondent in respect of his dealings since 1979 with the estate, and
restraining him from any further dealings with land forming part of the
5	estate. That land, situated at Little Cayman West, Block 82A, Parcel 6 is
known as ‘the Jacksons land.’ It was, at an earlier stage, registered in the
respondent”s name by means of a transfer from the estate effected by him
in his capacity as administrator. The respondent has since, however,
abandoned that claim to personal ownership and re-transferred the
10	Jacksons land to the estate.
The originating summons in Cause 103 of 1986 has been amended and
re-amended to include prayers for orders for the carrying into effect of the
trusts within the estate. It also now includes prayers for orders that
the Jacksons land be sub-divided and sold by private treaty and that the
15	conduct of the sale be placed in the hands of the applicants” attorneys. It
is proposed that the net proceeds of the sale be placed in escrow until the
final determination of these and the other pending causes and of the
entitlements of beneficiaries.
Cause 236 of 1991 relates to land at Little Cayman West, Block 75A,
20	Parcel 8 (‘the Bloody Bay land’). The main issue in it is whether the
Bloody Bay land is to be regarded as falling within the estate or whether
it is already beneficially vested in the successors in title of certain named
beneficiaries pursuant to a deed of gift made by Eden Snr. in 1904 and
later confirmed in his will. The originating summons in Cause 236 of
25	1991, now also amended, seeks orders for the sale of the Bloody Bay
land. It also includes prayers for declaratory orders vesting the beneficial
ownership in the successors in title under the deed of gift and setting
aside the current registration-which is also in the

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