AN CHUIRT UACHTARACH

THE SUPREME COURT
O‘ Flaherty J, 
Murphy J, 
Lynch J, (123/98)

BETWEEN:
M O’R
Petitioner/Appellant
.v.

C L
Respondent/Respondent

Judgment (ex-tempore) delivered on the 9th day of November, 1998, by O’Flaherty J. 

This is an appeal brought in a nullity suit confined solely to a debate on discovery. The appeal is from the order of Kinlen J. of 6th May, 1998. He, in turn, had affirmed an order of the Master of the High Court of 18th March, 1998.

The motion took a rather unusual route and perhaps that was probably as a result of the order of discovery that was sought. The order sought was an order directing the respondent to make discovery of all documents in her power, possession or procurement relating to any treatment received by her at any time from any medical practitioner either on an in patient or out patient basis, or any counselling or therapy received by her relating to any

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personality/emotional/psychological or psychiatric difficulties.  That in a sense may be too wide an order, or it may be too narrow. It may be anticipating what the issues are and on one view, might turn out to be too narrow a field to explore or, on the other hand, it might be too diverse.
The matters are set forth in the petition. It is claimed that the petitioner did not give a full, free and informed consent to his marriage to the respondent. Then it is said that the respondent did not give a full, free or informed consent to her marriage to the petitioner. It is then said that prior to and on the date of the wedding ceremony the respondent by reason of her state of mind, mental condition, personality and/or emotional, and/or psychological development did not have the capacity to enter into or sustain a normal and functional lifelong marital relationship with the petitioner.

It is so that over the last ten years or more the scope of the nullity jurisdiction of the courts has been expanded very much from the previous one hundred years and it is in that context that this motion should be considered. Both the Master and the High Court judge permitted limited discovery in regard to any treatment and so forth that the respondent might have received for seven years before the marriage.  No medical documents coming into existence after the marriage were to be subject to the order.  I think that that really is to curtail the remedy of discovery, and while family law matters have to be treated

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with special care and decorum, nonetheless the rules of court apply in family law matters as they do elsewhere. The law is not in doubt. It is old law as laid down in Compagnie Financiere du Pacifique .v. Peruvian Guano Co. Q.B.D. 55 which has been consistently followed by our courts. All documents relevant to matters in issue have to be disclosed. To quote from the judgment of Brett L.J. which is reproduced in the judgment delivered by Kenny J. in Sterling - Winthrop Group Limited . v. Farbenfabriken Bayer Aktiengesellschaft [1967] IR 97:-

“It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, information which it is reasonable to suppose, contains may, not which must, either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary.  I have put in the words ‘either directly or indirectly’ because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences...”

That is this situation.  These medical reports may well support the case that we understand from Miss Dunne that she will want to present namely that 

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there is no question of the respondent suffering any form of, to use a very neutral expression “deficit”, emotional or otherwise, that would have called the legality of the marriage in question. It is, of course, the case that unhappy differences have arisen between the parties which may require a separation but that is another day’s work.
I would propose that there should simply be, substituting for what the Master did and what Kinlen J. affirmed, an order for discovery in the ordinary way which would require all relevant documents to be discovered and it is then for the respondent’s legal advisers - giving the matter the greatest care which they undoubtedly will do of course - to decide what should be disclosed and what should not.