Rawlins v Smith

• Jurisdiction: Barbados
• Judge: Williams, J.
• Judgment Date: 13 July 1976
• Neutral Citation: BB 1976 HC 15
• Docket Number: No. 427 of 1970
• Date: 13 July 1976
• Court: High Court (Barbados)

High Court

Williams, J.

No. 427 of 1970

Rawlins

and

Smith

Appearances:

Mr. H. deB. Forde, S.C. with Hutchinson and Panfield for the defendant-applicant

Mr. J.M.G. Adams for the plaintiff-respondent

Practice and procedure - Order — Rectification.

Facts: The plaintiff was given judgment in an action against the defendant — The action concerned a nuisance on the defendant and an order was made against the defendant — The order drawn up in the Registry did not correctly reflect the order that was made by the court — The defendant sought to have the order rectified — The issue was whether the court ought to grant rectification.

Held: Rectification would be granted.

Williams, J.

1 On Tuesday, February 23rd, 1971 I gave judgment in suit no.427 of 1970 brought by the above named defendant. At the conclusion of my judgment I made the following order and awarded the plaintiff his taxed costs:

“An order of the court is granted restraining the defendant, by himself, his servants, agents or workmen or otherwise, from erecting any building on his land at Pine Plantation Road St. Michael, which would cause a nuisance to the plaintiff in the reasonable enjoyment of his dwellinghouse at Pine Plantation Road.”

2 The following is the formal order entered in the Registry in the above suit:

“It is ordered that the defendant be restrained by injunction from building any building that might interfere with the plaintiff in the reasonable enjoyment of this property at Pine Plantation Road, St. Michael.”

3 The application now before the court is by the defendant. He seeks a correction of the order as entered and asks that the words “would cause a nuisance to” and “his dwellinghouse” be substituted for the words, “might interfere with” and “this property” respectively. The application is opposed by the plaintiff.

4 Order 26 rule 11 provides as follows:

“Clerical mistakes in judgments or orders, or errors arising from any accidental slip or omission, may at any time be corrected by the court or a judge on motion or summons without an appeal.”

5 It is obvious to me, however, that this is not a case of a clerical mistake nor is it a case of an accidental slip or omission. This rule of court is therefore not in point.

6 Ainsworth v. Wilding [1986] 1 Ch. 673 provides an alternative basis on which the present application must be considered and Mr. Williams in fact cited and relied on this case. The headnote reads as follows:

“After a judgment has been passed and entered — even where it has been taken by consent and under a mistake — the court cannot set it aside otherwise than in a fresh action brought for the purpose unless (1) there has been a clerical mistake or an error arising from an accidental slip or omission within the meaning of the Rules of the Supreme Court 1883 order XXVII r. 11, or (2) the judgment as drawn up does not correctly state what the...