High Court dismisses amendment of pleadings post-judgment as it introduces a new cause of action.

Neutral Citation Number: [2011] IEHC 95

THE HIGH COURT

JUDICIAL REVIEW

2009 881 JR

BETWEEN

M. A. U., A. M. U., O. A. U. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND, M. A. U.), E. A. U. (A MINOR SUING BY HIS

FATHER AND NEXT FRIEND, M. A. U.), A. O. U. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND, M. A. U.), AND A. A’A. O. U.

(A MINOR SUING BY HIS FATHER AND NEXT FRIEND, M. A. U.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM (NO.2)

RESPONDENT

JUDGMENT of Mr. Justice Hogan delivered on the 9th day of February, 2011

1. In a judgment delivered by me on 13th December, 2010, I refused the applicants leave to apply for judicial review: see MAU v.

Minister for Justice, Equality and Law Reform [2010] IEHC 492. The net question which arose for consideration in that judgment

concerned the interpretation of s. 3(1) of the Immigration Act 1999 (“the 1999 Act”) and the effect of a deportation order made

under that sub-section. I held that it was clear beyond argument that the effect of s. 3(1) was that once the deportation order

takes effect, the subject of that order must endure a life long exclusion from the State, subject only to the mitigating effects of s.

3(11) and the power of the Minister for Justice, Equality and Law Reform to revoke a deportation order already made. In those

circumstances, since the applicants had effectively abandoned all other points and as the statutory interpretation issue had been

resolved against them, I ruled that I had no alternative but to refuse leave to apply for judicial review insofar as their challenge to the

validity of the deportation order was concerned.

2. Subsequent to the delivery of this judgment, the applicants then applied to amend their pleadings to enable them to challenge the

constitutionality of s. 3(1) of the 1999 Act on the ground that it effects a disproportionate interference with their constitutional

rights by reason of the life long ban.. In the alternative, they also seek leave to enable them to seek a declaration of incompatibility

under s. 5(1) of the European Convention of Human Rights Act 2003.

3. The questions which now arise are (i) does this Court have jurisdiction to permit an amendment of pleadings at this stage and (ii) if

the answer is in the affirmative, whether such leave to amend the pleadings should be granted? I propose to consider these questions

in turn.

Does the Court have a Jurisdiction to Amend the Pleadings at this Stage?

4. Although judgment has been delivered, the order has yet to be perfected, since the twin issues of costs and the question of

whether this Court should grant a certificate of leave to appeal to the Supreme Court under s. 5 of the Illegal Immigrants (Trafficking)

Act 2000 remain to be determined. This Court is nonetheless functus officio so far as the questions raised in the first judgment are

concerned.

5. This brings into focus the question of the Court’s jurisdiction in the matter. Ord. 28, r.1 of the Rules of the Superior Courts provides

that:-

“The Court may, at any stage of the proceedings, allow either party to alter or amend his endorsement or pleadings in

such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the

purpose of determining the real questions in controversy between the parties.”

6. The word “proceedings” is one which has no fixed meaning, even in a legal context. The term is rather one which falls to be

interpreted by reference to the specific context in which it appears, since, for example, the word is capable of being applied to both

an appellate court such as the Supreme Court (e.g., “…the proceedings are pending in the Supreme Court”) as well to certain types

of non-judicial adjudications (e.g., “….disciplinary proceedings pending before the Fitness to Practice Committee of the Medical

Council…”). Depending on the context, therefore, the reference to “proceedings” in the Rules of the Superior Courts could refer either

to the proceedings at first instance (i.e., from the commencement of the action up to the point where it is determined by the High

Court) or to proceedings in the broader sense of the term, namely, the progress of the action before the courts generally, including

an appeal to the Supreme Court.

7. It must be noted, however, that Ord. 28, r.1 refers to “the Court”. This phrase is defined by Ord. 125, r.1 in the following terms:-

“’the Court’ means either, as the context requires, the High Court or a Judge or Judges thereof, and includes the Master,

the Examiner and the Probate Officer where they respectively have jurisdiction…”

8. It follows from this that the reference to “proceedings” in Ord. 28, r.1 must be to proceedings in the High Court or proceedings

before a judge of the High Court. This means that a judge of the High Court has the jurisdiction to permit an amendment of the

pleadings at any point during the currency of the proceedings before him or her. The reference in Ord. 28, r.1 is not, however, to

“proceedings” in the wider sense of the term (such as would, for example, be apt to apply to an appeal pending in the Supreme

Court), but it is confined to the jurisdiction of the High Court alone.

9. In passing, it may be noted that in her judgment for the Supreme Court in Wildgust v. Bank of Ireland [2001] 1 I.L.R.M. 24, 39

McGuinness J. stated with specific reference to Ord. 28, r.1 that “it was not impermissible for pleadings to be amended during the

course of a trial” (emphasis supplied), albeit that this was not a practice which “should frequently be permitted.” While the question

of a possible amendment of pleadings post-judgment was not before the Court, it may nonetheless be significant that McGuinness J.

spoke of a possible amendment during the course of a trial, i.e., thereby, perhaps, implicitly suggesting that the power to amend did

not obtain once judgment had been delivered.

10. While it is true that in Wildgust the Supreme Court upheld the decision of the President of the High Court to permit a late

amendment to the pleadings, that application to amend was made before the then President had delivered judgment. The amendment,

in any event, was no more than an amplification of a claim already well made in the course of the proceedings - permitting the

plaintiff to add a claim of negligent misstatement to an existing claim in contract and negligence - and, unlike what is urged in the

present case, did not involve a totally new and entirely different cause of action.

11. It is true, of course, that the Supreme Court itself has a jurisdiction to amend the pleadings, but this power derives from Ord. 58,

r. 8. This latter rule provides that that Court has “all the powers and duties as to amendment and otherwise of the High Court.” Thus,

while the Supreme Court enjoys a full power to direct an amendment of pleadings, it does so in the context of “appeals actually

pending in the Supreme Court” by ensuring that “the powers and duties of the Supreme Court in dealing with pending appeals shall be

no less than those of the High Court in dealing with the matter at first instance”: see Hughes v. O’Rourke [1986] ILRM 538 at 540-

541, per Henchy J.

12. In my view, however, these proceedings are no longer current before me. I accept that the order still remains to be perfected

and, as we have noted, the issues of costs and a certificate remain outstanding. But the proceedings so far as they concern the

validity of the deportation order have been disposed of by this Court and they cannot be said to be current in any real or meaningful

sense. It follows, therefore, that I have no jurisdiction to permit an amendment at this juncture which would bear on the validity of

the deportation order given that I am functus officio on that very issue. It is true that, in the event that the appropriate certificate

for leave to appeal was given and there was an appeal to the Supreme Court, that Court would have a jurisdiction to amend the

pleadings, but this power would derive from Ord. 58, r.2 and not from Ord. 28, r.1.

13. In any event, it is clear from the Supreme Court’s decision in Cox v. Electricity Supply Board (No.2) [1943] I.R. 231 that an

amendment at this juncture is not permissible where it would it would lead to an entirely new cause of action and possibly a different

judgment from that already delivered. Here the plaintiff was originally granted a declaration that the manner in which he had dismissed

from his employment was unlawful. He later applied to amend the pleadings post-judgment so as to include a claim for damages. The

Supreme Court, reversing the decision of Gavan Duffy J., held that such an amendment was not permissible. Murnaghan J. rejected

the argument ([1943] I.R. 231 at 236) that the power of amendment was this extensive:-

“But I do not think that any of the authorities go to the length of suggesting that when an action has proceeded to trial

and judgment has been given, it is open to the Court to allow an amendment of the pleadings which, while the original

judgment stands, may introduce a new cause of action and possibly lead to a different judgment.”

14. These comments are particularly apposite so far as the present case is concerned. The original judgment upheld the validity of

the deportation order. The proposed amendment of the pleadings would effectively introduce a new cause of action (i.e., namely, the

constitutionality of s. 3(1) of the 1999 Act) which, if it succeeded, would lead to a new judgment on the validity of the deportation

order. In these circumstances, it would appear that I am, in any event, bound by the Supreme Court’s decision in Cox and thus

cannot permit an amendment of the kind now sought to be permitted.

15. I appreciate that the English Court of Appeal has taken the view that there is a power to amend the pleadings post-judgment,

albeit that this jurisdiction is confined to exceptional cases and there are “stringent limits” to the exercise of this power: see Stewart

v. Engel [2000] 1 W.L.R. 2268 at 2275 per Sir Christopher Slade. That jurisdiction was described in Stewart by Sir Christopher Slade

as a rule of practice which had survived the introduction of the (English) Civil Procedure Rules 1998. That is doubtless so, but this, of

course, cannot affect the view which I have taken of the limits of the power to amend in Ord. 28. Even if I am wrong in that, I am

not persuaded that the kind of quite exceptional circumstances envisaged by English cases such as Stewart are present here such as

would justify me making an order to amend the pleadings at this stage post-judgment.

Conclusions

16. It follows, therefore, that for the reasons just stated, I have no jurisdiction to grant the amendment sought.