IN THE DISTRICT COURT OF HONG KONG
HOLDEN AT VICTORIA
ACTION NO.4815 OF 1969
|CHAN Ping-yuen and NG Kuen-fung administrators of the estate of CHAN CHi-ming infant deceased
|Heng Hing Hong Hongkong Limited
Coram: N.B. Hooper, District Judge
Date of Judgment: 9 September 1970
1. This is an application on the part of the plaintiff for an order to be made that the costs of counsel for his attendance in Court on the 19th of January 1970 before His Honour Judge Pickering be provided for and that the order dated the 19th of January, 1970 be amended by adding the words 'Certificate for Counsel'. This application is made under Order 20 Rule 11 of the Rules of the Supreme Court, 1967, commonly known as the 'slip' rule.
2. In support of the application the plaintiff relies on the affidavit of Mr. Lau Hoi Hing of the firm of Messrs. H.H. Lau & Co., solicitors, who had the conduct of the proceedings in this action. In particular they relied on the provisions of paragraph 3 of the affidavit as follows :-
||paragraph 3. The Honourable Judge entered judgment in favour of the plaintiff with costs to be taxed. Counsel Mr. Paul Fok applied to the Honourable Judge for a Certificate for Counsel just prior to the Court arising and it was presumed that an order had been made accordingly. However, on a search of the Court record it is found that the Honourable Judge had not made an order of Certificate for Counsel'.
3. The defendants rely upon the affidavit of Mr. Woo Pak Hay the solicitor having the conduct of the proceedings on behalf of the defendants, which also confirms in paragraph 3 that Counsel for the plaintiffs did apply for a certificate for Counsel before the Court arose, but in spite of such request the Honourable Judge did not order the certificate to be issued.
4. Order 20 Rule 11 provides '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'.
5. It would appear from the authorities referred to in the notes of the Supreme Court Practice, and also in the 22nd Vol. of the 3rd Edition of Halsbury's Laws of England, that quite apart from this rule, the judge or master who gave or made the judgment or order, has inherent power to correct any clerical mistake or error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to his meaning and intention.
6. It is, indeed, unfortunate that the Learned Judge who heard this case, is not now available to entertain this application. The question now arises, whether I, who took no part in the hearing of this action, should amend the judgment of the Court by adding these words 'Certificate for Counsel'.
7. It is quite clear from the authorities that the error or omission must be an error in expressing the manifest intention of the Court, and of course the original Judge is in a far better position to know what the intention of the Court was at the time when the judgment or order was made. In the case of In Re Swire 30, Ch.D. page 239 an application was made to the Court of Appeal to alter the record of its order. In that case an order of a Court of Appeal had been drawn up, passed...