The effect of a ‘Liberty to Apply’ clause in a consent order was considered by the Jamaican Court of Appeal in the Admiralty case of Jebmed SRL v Capitalese SPA [2017] JMCA Civ 45, which concerned a previous court order relating to the disposal of a ship that had been arrested on account of the failure of its owners to settle a mortgage debt.

In a previous application by the mortgagee, the court had ordered the sale of the ship by the Admiralty Bailiff, subject to conditions, with ‘Liberty to Apply’. Shortly afterwards, the mortgagee filed a notice of application seeking possession of the ship, ostensibly in reliance upon the ‘Liberty to Apply’. This application was refused, on the ground that it sought what amounted to a variation of the previous order for sale. The principal issue before the Court of Appeal was thus whether an application for variation of an existing order could be granted under the ‘Liberty to Apply’, and whether the judge in the lower court was correct in refusingto grant the application. The Court held that the judge was correct.

Although the procedural rules governing this case were to be found in Part 70 of the Civil Procedure Rules, dealing with Admiralty claims, the Court’s analysis of the effect of the ‘Liberty to Apply’ was expressed in general terms and therefore would apply to all civil cases. Straw JA (Ag), delivering the judgment of the Court, relied principally on three precedents, one English and two Jamaican, namely Cristel v Cristel [1951] 2All ER 574, Causewell v Clacken, (unreported) Court of Appeal, Jamaica, Supreme Court Civil Appeal No 129/2002, judgment delivered 18 February 2004, and Capital Solutions Ltd v Walsh [2010] JMCA App 4.

In Cristel, a husband who had deserted his wife obtained an order for possession of the matrimonial home, occupied by the wife, and which he wished to have sold with vacant possession. The court made a consent order for sale, suspended until the husband provided suitable alternative accommodation for the wife in the form of ‘a two bedroom house or bungalow’. The husband succeeded in locating a two bedroom flat, but not a house or bungalow. He sought an amendment of the consent order to include the words ‘or flat’. The English Court of Appeal held that ‘Liberty to Apply’ referred to the working out of the actual terms of the consent order, and the insertion of the words ‘or flat’ would amount to a variation of the order which, in the absence of any change of circumstances, the court could not permit. Somervell LJ stated that an application could be made under a ‘Liberty to Apply’ only “where the order drawn up is one which requires working out, and the working out involves matters on which it may be necessary to obtain the decision of the court”. ‘Liberty to Apply’ thus referred to “the working out of the actual terms of the order” and did not entitle a party to seek a variation.

Similarly, in Causewell v Clacken, Smith JA, in considering the scope of the court’s jurisdiction to vary a consent order, had pointed out that where, in the case of a final judgment or order, the necessity for a subsequent application was foreseen, it was “usual to insert in the judgment or order words expressly reserving liberty to any party to apply to the court for further directions”, but the insertion of such words did “not enable the court to deal with matters which do not arise in the course of working out the judgment or order or to vary the terms of the order, except possibly on proof of change of circumstances.” This approach was also confirmed by Phillips JA in Capital Solutions Ltd v Walsh [2010] JMCA App 4.

One can conclude from the Jebmed case and the previous authorities cited that the effect of a ‘Liberty to Apply’ is the same in all civil cases, bearing in mind that Cristel was a family case, Causewell involved a commercial contract, and Jebmed was an admiralty matter, and in all three cases the courts applied the same principles.