Re Ropner's Settlement Trusts ; Ropner v Ropner ; Re Harrison's Share under A Settlement ; Re Williams' Will Trusts

JurisdictionEngland & Wales
JudgeLORD JUSTICE JENKINS
Judgment Date21 December 1954
Judgment citation (vLex)[1954] EWCA Civ J1221-2
Date21 December 1954
CourtCourt of Appeal

Re Harrison's Settlement Trusts.

Harrison
and
Harrison and others

Re Ropner's Settlement Trusts.

Ropner
and
Ropner and Others.

[1954] EWCA Civ J1221-2

Befor:

Lord Justice Jenkins,

Lord Justice Hodson,

Mr Justice Vaisey.

In the Supreme Court of Judicature.

Court of Appeal.

LORD JUSTICE JENKINS
1

The judgment that I am about to read is the Judgment of the Court.

2

In each of these two cages an application by Originating Summons for sanction on behalf of infant, unborn, are unascertained, persona of a scheme making variations in the Trusts of a Settlement came before Mr Justice Roxburgh in chambers on the 1st March 1854. According to the decisions of this Court in Re Downshire Settled Estates and Re Blackwell's Battlement Trusts, 1953, Chancery, page 218, the variations sought ware such as the Court would have jurisdiction to sanction if satisfied that they were for the benefit of the infant unborn and unascertained persons interested or potentially interested under the Trusts.

3

There was, however, then pending before the House of Lords the case of Chapman v. Chapman, 1954 Appeal Cases, page 429, and it appeared to Mr Justice Roxburgh that the decision in that case might impair or destroy the authority of the Downshire and Blackwell cases, and he accordingly adjourned the two Summonses with a view to dealing with them after and in the light of the expected decision in Chapman v. Chapman. On the following day, however, Mr Justice Roxburgh saw a report of the case of In re Yates' Settlement Trusts. 1954, 1 Weekly Law Reports, page 564, In which this Court had held (though in somewhat special circumstances) that a similar application should not have been adjourned, as Mr Justice Harman had adjourned it, pending the decision of the House of Lords in Chapman v. Chapman, but should have been heard and determined in the ordinary course.

4

Mr Justice Roxburgh regarded the decision in In re Yates' Settlement Trusts as applicable to the two Summonses now in question. He accordingly caused them to be restored to his list and sanctioned both schemes by Orders orally pronounced in Chambers on the 15th and 17th March respectively.On the assumption that the Downshire and Blackwell cases were authoritative these Orders were, at the dates on which he pronounced them, orders which he could properly make.

5

On the 25th March 1954 the House of Lords pronounced their decision in Chapman v. Chapman, and the effect of that decision was to destroy the authority of the Downshirs and Blackwell cases and to make it clear that the Court's jurisdiction over Trusts did not extend to the sanctioning of variations in Trusts such as those which Mr Justice Roxburgh had orally sanctioned on the 15th and 17th March 1954. At the date of the House of Lords decision these Orders had not yet been entered, or in other words had not been perfected as formal acts of the Court. In these circumstances Mr Justice Roxburgh directed the Registrar not to proceed further with the perfecting of the Orders, and caused the Summonses to be restored to his list and adjourned into Court for further argument.

6

At this further hearing the parties found it impossible to contend that the schemes could properly be sanctioned by fresh Orders then made, in view of the House of Lords decision in Chapman v. Chapman. But all the parties joined in contending that the learned Judge ought not to recall or vary the Orders of the 15th and 17th March and that these Orders should be perfected in the terms in which they were orally pronounced as Orders bearing the dates on which they were respectively so pronounced. Mr Justice Roxburgh rejected this contention, recalled the two unperfected Orders, and by two further Orders both dated the 38th May 1954 dismissed the Summonses. From such dismissal the Plaintiffs in both cases now appeal to this Court, with the support of all other parties, and they ask for relief by way of declaration or direction to lead to the perfecting of the Orders as orally pronounced by Mr Justice Roxburgh in the first instance.

7

The submissions in support of the appeals are to theeffect:- Firstly, that in general an order is made once and for all at the time when it is orally pronounced, and cannot thereafter he discharged or varied otherwise than on appeal. Secondly, that by way of exception to this general rule a judge may have a limited discretionary power of varying or discharging an order orally pronounced by him at any time before it is perfected by entry, but any such power is confined to cases of manifest error or omission or, in other words, cases broadly speaking comparable to those in which an order can be corrected after entry under Order 28, Rule 11. Thirdly, that in any case a judge should not vary or discharge an order between oral pronouncement and entry on his own initiative, as distinct from doing so on the application of one or other of the parties. Fourthly, that if and so far as there is any such discretionary power the learned Judge should not have exercised it as he did in these two cases. Fifthly, that for the purposes of the foregoing submissions there is no valid distinction between an order orally pronounced in Chambers (as were the two Orders now under consideration) and one so pronounced in open court.

8

We accept the last of these submissions, and agree that nothing turns on the fact that the two orally pronounced Orders with which we are concerned were pronounced in Chambers, while those substituted for them were made in open court. But we reject the limitations sought to be placed by the first three submissions on the power of a judge to recall his own order at any time before it has been perfected by entry. So far as the limitations involved in the first and second submissions are concerned, these seem to us to be plainly inconsistent with practice and the weight of authority, but it has been argued that if the practice is wrong it is not too late for the Court to say so and that the authorities are founded on obiter dicta which are later in date than anauthority which ought to be followed and which was not brought to the notice of the Court in the later cases.

9

We take the first three submissions together, for in our opinion it can make no difference to the answer to the question whether a judge can recall his own order before it can be perfected that in one case his attention has been drawn to some relevant consideration of law or fact by one of the parties to the matter under consideration whereas in another case he has made the discovery for himself by his own diligence or even by accident. It is true that the cases cited to the Court have all been cases in which a judge has varied his order after application had been made by one of the parties either for that purpose or at any rate in such a way as to give an incidental opportunity for revision, but those cases would naturally be more common than cases in which a judge might act on his own initiative. In the cases under consideration there was no opposition and it was in the interest of no one to ask the Judge to recall his Order. These three submissions would, we think, if accepted, produce an unworkable result. Few judgments are reserved and it would be unfortunate if once the words of a judgment were pronounced there was no locus oenitentias. The Appellants made a nominal concession to meet this difficulty by saying that the Judge retains seizin of the matter so long as the parties are before him but that once the parties have left the court and the next case has been called it is too late because the parties may have already acted on his oral judgment. Our answer to this is that although the judgment dates from the day of its pronouncement it is not perfected until drawn up, passed and entered, and anyone who acts on it beforehand must take such risk as there is that it will not be drawn in the form in which it was heard to be pronounced.

10

We think that an order pronounced by the judge can always be withdrawn, or altered or modified, by him until itis drawn up, passed and entered. In the meantime it is provisionally effective, and can be treated as a subsisting order in cases where the justice of the case requires it, and the right of withdrawl would not be thereby prevented or prejudiced. For example, the granting of an injunction, though open to review, would generally operate immediately, that is, as soon as the relevant words are spoken. But an order which could only be treated as operative at the expense of making it, in effect, irrevocable, for example, an order for the payment of money, cannot be treated as operative until it has been passed and entered. Where the nature of the case requires it, the process of passing and entering can be accelerated by the judge's direction, and this is often done in the Chancery Division.

11

A reported example is the case of In re Thomas: Bartley v. Thomas. 1911, 3 Chancery, page 389. In that case a contract for the sale of land required the approval of the Court and it was argued that all that was required by the contract was that the receiver should apply for and endeavour to obtain the approbation of the Court to the contract. That requirement, it was contended, was satisfied when the Master expressed his approbation and from that moment the purchaser's rights crystallised and the contract became binding.

12

This argument was rejected in no uncertain terms by Mr Justice Warrington (as he then was). At page 395 he said, "Now, is the matter open? The purchaser says...

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