High Court of Ireland Decisions

1. By Order of the Master of the High Court made on 14th May, 1997 Dr. Gerard Byrne was appointed as medical inspector for the purposes of this petition for nullity of marriage. The directions of the court have been sought because of controversy as to the scope of the powers and duties of the medical inspector and in particular in respect of conflicts as to whether the inspector may view (i) a video of the wedding, and (ii) the contents of a 1993 diary, the property of the Respondent, which was removed from her home by the Petitioner. Thirdly directions are sought on the question as to whether the medical inspector should, or is entitled to, interview third-party informants who may have information which might assist the medical inspector, an experienced consultant psychiatrist, in respect of his diagnosis of the state of mind of the parties around the time of the ceremony of marriage in September 1993.

2. In this contested nullity application it may be helpful if I set out a brief history of how this motion for directions has come before this court. The petition was presented on 1st October, 1996 in respect of the alleged marriage which took place on 25th September, 1993. There are no children of the marriage. Dr. Gerard Byrne was appointed as medical inspector by Order of the Master made on 14th May, 1997. The Respondent attended for interview with Dr. Byrne on 13th August, 1997 and on 26th August, 1997. The Petitioner then attended on Dr. Byrne on 23rd September, 1997 and on 6th January, 1998. According to the Petitioner in his Affidavit sworn on 10th March, 1998 at paragraph 4, he advised Dr. Byrne that, in relation to certain matters, there were persons other than the parties who had information and knowledge relevant to the relationship between the parties and it was his opinion, which he expressed to Dr. Byrne, that it would be important that Dr. Byrne speak with these people. He listed these people as four friends of himself, the Petitioner, and his brother. At paragraph 5 of this Affidavit he said that he had come into possession of a diary written by the Respondent in which there are entries in her handwriting very relevant to the issues and that he came into possession of this when he found it on the kitchen work top in the family home towards the end of September 1996. In a replying Affidavit sworn on 31st March, 1998 the Respondent questioned the relevance of the third-party informants. It was clear from the sequence of interviews that Dr. Byrne had interviewed her twice before he interviewed the Petitioner from whom he became aware of the Petitioner’s belief that these persons might have information of relevance. As for the diary, the Respondent only became aware that her diary was missing when she received a copy of the Petitioner’s Affidavit sworn on 10th March, 1998 and then searched the box containing her private and personal possessions and discovered that the 1993 diary was missing from the box which she kept in a wardrobe in her bedroom in the family home. She says that it was not possible that the Petitioner could have found the diary on the kitchen work top in the family home as it could only have been taken by extraction from the box and she regarded the removal and retention of her diary as amounting to a theft of her personal property and seeks the return thereof and any copies made of the contents of her personal diary.

3. By Order of the Master made on 14th May, 1997 Dr. Gerard Byrne was appointed to carry out a psychiatric rather than a physical examination of the Petitioner and of the Respondent and to report in writing to the court thereon, the said examination to be carried out at such time and place as may be agreed between the parties and the Registrar of the Central Office. It was also Ordered that the Petitioner and Respondent and their respective Solicitors and the psychiatrist so appointed should attend at the agreed time and place in order that the Petitioner and Respondent may then and there be identified as the parties in this cause to be examined. By the same Order the Master fixed the issues to be tried as to whether the Petitioner or the Respondent lacked the capacity to enter into and/or sustain a normal life-long marital relationship with the other party by reason of his or her state of mind, mental condition or emotional and psychological development at the date of the ceremony of marriage or by reason of his or her state of mind, mental condition or emotional and psychological development at the date of the ceremony of marriage and whether the Petitioner gave a full free and informed consent to the said marriage and such other issues as to the court shall seem fit. Thus the psyche of each of the parties at the time of the marriage is much in issue.

4. In view of the suggestion that Dr. Byrne should interview five third-party informants and also the suggestion that the medical inspector should view entries made by the Respondent in her handwriting in her diary made in the year of the wedding ceremony, it was thought prudent that directions should be sought from the High Court. A motion dated 11th March, 1998 was issued seeking directions from the court. This motion came before the High Court on 24th April, 1998. Neither party has furnished a copy of the Order made on that day but my understanding is that the court declined to make any specific order but indicated that the interviewing of third-party informants could lead to difficulties. In the ensuing months issues crystallised in correspondence between the Solicitors. It became clear that the medical inspector felt that interviews with third-party informants, who had known the parties at the time of the marriage, could assist him in forming an opinion as to whether either party was suffering from a personality disorder at that time. The Petitioner had supplied the medical inspector with the names and addresses of five prospective third-party informants. The Respondent’s Solicitor contended that such interviews would involve stepping outside the scope of the order made by the Master of the High Court as this was confined to the conduct of an examination of each of the parties and the preparation of a report based on such examination. By letter dated 11th August, 1998 Dr. Byrne wrote to the Respondent’s Solicitor saying that he intended to proceed with interviews with the five third-party informants as interviews with informants are a standard practice in carrying out a psychiatric assessment when a personality disorder is suspected. He also said that he intended to view the wedding video and invited an application to court for clarification if there was objection to his taking these courses of action.

5. As for the objection to the medical inspector viewing the wedding video, I am happy to note that the Respondents’ objection was withdrawn so that Dr. Byrne may view the wedding video. However, the issues with regard to the psychiatrist being shown the 1993 diary and the matter of interviews with third-party informants remain in contention.

6. In order to resolve the impasse a motion was brought seeking directions in regard to the medical inspector and seeking an order directing the medical inspector to carry out his duties within the remit of the Order of the Master dated 14th May, 1997 and to deliver a report based on his findings subsequent to his having interviewed the parties to this action. This was brought on foot of the Affidavit sworn on 19th February, 1999 of the Respondent and the replying Affidavit sworn on 10th March, 1999 of the Petitioner.

7. I have had the benefit on 26th March, 1999 of hearing Dr. Byrne as a witness. I preface my summary of Dr. Byrne’s evidence as to the difficulties he envisaged in carrying out his task of assisting the court by making a full report as the duly appointed medical inspector by stating that Dr. Byrne is an experienced and well respected child psychiatrist. He frequently assists the court with expeditious and expert reports. In this case he has stressed that the directions given are likely to set a precedent for medical inspectors in nullity actions in the future. He made it clear that he would accept the court’s ruling but he needed directions as to how to fulfil the requirements of the court in respect of carrying out his assessment of the parties within constitutional and legal requirements. He explained that to carry out a full psychiatric assessment he needed to interview third-party informants and that this was an accepted psychiatric practice in cases of diagnosis of a suspected personality disorder. When it was suggested to Dr. Byrne that he could be present in court while the third-party informants gave evidence, he explained that this would not be satisfactory as he could not delegate his role in making a proper assessment to lawyers as they might not ask the appropriate questions or follow-up questions and the courtroom would be the wrong atmosphere for eliciting the information he needed for his diagnosis.

8. Suggestions were made that difficulties might be overcome by evidence being taken on commission with Dr. Byrne doing the interviewing and with a stenographer present. The suggestion was also made that a double frame video unit with an operator under the control of Dr. Byrne would record visually and aurally the interview by Dr. Byrne. Dr. Byrne also made the point that the assessment being made for the purpose of his report was a forensic assessment and is unlike a confidential clinical assessment in that the purpose is to assist the courts and the interview has to be done even if one party is reluctant. As for the suggestion that evidence might be taken on commission with Dr. Byrne asking questions of the third-party informant, this involves considerable disadvantages. In matters of the psyche it seems to me that the court needs to hear the tone and experience the vibrancy, colour and context of the words spoken. It is preferable that the court should hear the witnesses and see them. Likewise real live witnesses in the witness box are infinitely preferable to witnesses being seen on a video. Both commissions and video evidence slow a case up and involve factors in a setting not under the court’s direct control.

9. Unfortunately the earliest convenient date on which the hearing of this motion could be resumed was 23rd July, 1999. Happily by then the issue of the viewing by Dr. Byrne of the wedding video was resolved. I now turn to the first of the unresolved issues namely whether it is appropriate for the medical inspector to be shown the Respondent’s 1993 diary or copies thereof taken and made without her consent.

10. On the issue of the diary, it seems to me that the removal of the diary by the Petitioner or his agent is admitted. It makes little difference whether the diary was removed from the kitchen work top or from the box in the wardrobe in the bedroom in which the Respondent kept her most personal property. The diary was taken surreptitiously and without the Respondent’s consent. Counsel for the Respondent contends that the diary was obtained by unconstitutional means involving the invasion of the wife's privacy by an intrusion which deprived her of her intimate records. Having referred to a well known line of authority stemming from Mary McGee -v- Ireland, Kennedy and Arnold -v- Ireland and Trimbole -v- Attorney General, her Counsel relied particularly on an unreported judgment of McMahon J. in OC -v- TC delivered on 9th December, 1981. That matrimonial case involved a claim for maintenance by a wife. In June 1981 the wife returned to Ireland from the United States and, while her husband was abroad, she brought two furniture removal vans from England with a number of workmen and two men who appeared to be bodyguards to the husband’s house. The wife removed a considerable quantity of furniture in the vans and also removed letters and photographs from the husband’s bedroom. She retained the photographs and letters and they were tendered in evidence at the trial. McMahon J. ruled that they were inadmissible because they had been obtained in flagrant violation of the husband’s constitutional right to the inviolability of his home (see The People AG) -v- O’Brien [1965] IR 142.) Counsel for the Respondent argues that the same principle applies in this case as the Petitioner in conscious and deliberate violation of the Respondent’s rights removed her diary from the kitchen table or from her box of private papers in her wardrobe. He contends that the diary and its contents are now inadmissible because they were obtained in flagrant violation of the Respondent’s constitutional rights. In short, he argues that the diary is now “the fruit of a poisoned tree” and that the violation of her rights has been such that she should be put in the position as if her rights had not been violated. Accordingly, not just the diary should be returned to the Respondent, but also all copies should be returned to her forthwith and since the diary is now inadmissible, the contents of the diary should not be allowed to be brought into court by the backdoor through the giving of a psychiatrist’s evidence as to the contents thereof. He argued that it was difficult to contemplate a more vicious attack on a person’s psyche and dignity than the theft of an intimate personal diary.

11. Counsel for the Petitioner submitted that the diary could assist the medical inspector in forming an opinion as to the Respondent’s state of mind at the time of the marriage. She argues that direct evidence as to state of mind is notoriously difficult to come by and usually has to be deduced from the behaviour of people. Thus evidence contained in a contemporaneous record made by a party as to her state of mind at the time of the marriage may be important to the determination of the case. Since a nullity action is dealt with in camera the disclosure of the contents of the diary will be limited to the parties involved in the case, their representatives and the court officers including the medical inspector. The intrusion on the Respondent’s privacy will be limited whereas the public interest in the administration of justice and the certainty of marriage status both warrant the Court acting on the best available evidence. The courts have a discretionary power to order the disclosure of documents. It is arguable that the Petitioner would be entitled to get sight of the diary if he applied for discovery. Confidentiality is not a recognised form of privilege.

12. It may well be that the 1993 diary is discoverable and that the Petitioner will be advised that there are documents which may be relevant to the suit in the Respondent’s possession. If so then a motion for discovery may be brought and, with due process, the issue as to whether discovery of documents is appropriate can be argued and, if necessary, resolved by the court. Obviously there may well be arguments which can be made on the basis of the line of argument known as the “fruit of the poisoned tree” theme on the one hand and, on the other hand, as to the importance of all relevant admissible material being adduced for the assistance of the court in its enquiry. I have no doubt that there is a need for due process in view of what would appear to be a brazen and outrageous intrusion into the Respondent’s most personal and intimate privacy. If a motion for discovery is brought in due course, then there can be no suggestion that shortcuts have been allowed to be taken by an apparently blatant larceny of the diary. Arguments as to whether there has been a deliberate and conscious breach of the Respondent’s constitutional rights are best dealt with in a formal discovery motion particularly as the outcome of a nullity action can affect both status and property rights. In Kennedy and Arnolds -v- Ireland [1987] IR 587 at page 593 the President of the High Court, Hamilton P., stated that;

13. I have come to the conclusion that the medical inspector should not be given sight of the contents of the 1993 diary at least for the present. In Hildebrand -v- Hildebrand [1992] 1FLR 244 Waite J. in the Family Division was dealing with discovery of documents where a husband by improper conduct had surreptitiously made copies of the wife’s documents. At page 248 Waite J. said:-

14. While I am sure that the Respondent is entitled to her diary and the copies thereof at present and would echo King Dairmait’s ruling in the dispute between St. Columba and St. Fintan “to every book its copy”, nevertheless I am not to be taken as precluding in the future the bringing of a motion for discovery in respect of some document which one of the parties regards as material and admissible. In the meantime the medical inspector should prepare his report without recourse to the diary in the absence of a further motion and a contrary direction from the Court either on a preliminary motion or at the eventual full hearing.

15. I note that in JS -v- CS (orse.CT) [1997] 2 IR 506 I refer to the cases of D -v- C [1984] ILRM 173, RSJ -v- JSJ [1982] IRLM 263 and UF (orse. UC) -v- JC [1991]

16. Counsel for the Petitioner in the present case suggests that the Court was contemplating the inevitability of hearsay evidence as an element in an expert witness’s testimony. I did not intend to give this impression and so it may be helpful, since both parties are seeking further directions in this case, if I revisit aspects of the law governing expert testimony particularly in view of the incoming tide of evidence in respect of the psyche in these cases. However, first it is necessary to set out the relevant provisions of statutes and the wording of Order 70 Rule 32 which are the provisions governing the appointment of a medical inspector. The Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870 came into effect on 1st January, 1871 and applied to Ireland only. Section 23 stated:-

17. The Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1871, which may be cited with the 1870 Act as “The Matrimonial Causes and Marriage Law (Ireland) Amendment Acts, 1870 and 1871”, at Section 8 deals with Rules of Evidence .

18. These powers would appear to have moved to the Superior Courts Rules Making Committee . Order 70 of the Rules at Part IX deals with medical inspection. The power of appointment of the medical inspector in a nullity suit arises under Order 70 Rule 32. The rules are specific and set out an exact procedure to be followed by a medical inspector subsequent to his appointment by the Master. There is no provision in the rules for interviewing any person other than the parties to the action. In fact it is clear that the wording of Rule 32 is such that it was a physical examination of the parties which was envisaged. The forms in Appendix L, the Form No.8 Certificate of Identification, clearly envisage a physical examination of the parts and organs of generation; and likewise Form No. 9, the Oath of the medical inspectors, refers to an examination of the parts and organs of generation and to a report in writing as to whether the party is capable of performing the act of generation and whether such incapacity can be relieved or removed by art or skill and whether the party has or has not any impediment to prevent the consummation of marriage. These rules and forms are in Statutory Instrument No. 15 of 1986. In recent years the practice has been for the Registrar to amend the forms to take cognisance of the developments in respect of the appointment of Consultant Psychiatrists as medical inspectors.

19. While the application is made for directions by the parties, the underlying reality is that Dr. Byrne seeks guidance in the performance of his duty as the duly appointed medical inspector. Counsel has drawn attention to Order 114 of the Rules which is to the effect that when an officer attached to any Court is engaged in duties relating to business of that Court which is for the time being required by law to be transacted by or before or under or pursuant to the order of a Judge of that Court, he shall observe and obey all directions given to him by such Judge. Dr. Byrne has made it clear that his wish is to comply scrupulously with the order of the Court. At the same time he has pointed out that his expert assessment will be less complete and satisfactory from his point of view as a medical expert unless he interviews third-party informants as would often be usual in making a clinical diagnosis where personality disorder is suggested. Whilst I acknowledge the force of the points made about the desirability of having a report from the medical inspector which is based on his having pursued all avenues of diagnostic inquiry which seem appropriate to him with his expert experience, nevertheless there are legal and practical problems obviating this. First, it is manifest that the wording of the provisions of the statute and of the rules envisage an inspection of the parties themselves and not an examination of third-party informants. The cases CD -v- ED (unreported), Henchy J. delivered on 21st June, 1971, and JS -v- CS [ 1997] 2 IR 506 might be regarded as already having stretched to its elastic limit the extension of the law to cover the appointment of a psychiatrist rather than a gynaecologist or urologist to inspect the parties on behalf of the Court. It is manifest that it would stretch the elasticity beyond breaking point to extend matters to include interviewing third-party informants and this would be in breach not only of the letter but also of the spirit of the wording of the statute and of the rules. A further cogent point militating against any extension of the scope of interviews to be conducted by the medical inspector beyond the parties themselves lies in the novelty of the suggestion that third-party informants should be interviewed. The Respondent attended two interviews with the medical inspector in August 1997. From the Petitioner’s Affidavit it would appear that the suggestion that the medical Inspector should interview third-party informants arose during or after the interviews between the Inspector and the Petitioner in September 1997. It is clear from the wording of the Master’s Order that the Inspector was appointed on the basis that he would examine the Petitioner and the Respondent and with no mention whatsoever of interviews with third-party informants either having been referred to in the Master’s Order or during the interviews with the Respondent in August 1997. It seems that the Respondent was taken aback at the suggestion that the medical inspector was contemplating interviews with third-party informants. In the circumstances one must be sympathetic to the proposition made on behalf of the Respondent that she gave an interview with Dr. Byrne on the understanding that he would report on her and the Petitioner on the basis of interviews with them and without his views, in her perception at least, being contaminated by third-party informants, whom she apprehends may be partisan as friends or family of the Petitioner.

20. If the Inspector’s report is confined to his assessment on the basis of his interviews with the parties then, while it is subject to the limitations pointed out by Dr. Byrne, nevertheless the confined ambit has the advantage that it does not range wide to extraneous matters and persons. For example, there is the peril that if a third-party informant is interviewed by the psychiatrist then at the Court hearing, the information given by this person may be challenged on the grounds that it is tainted by collusion or falsity. If the third-party is called as a witness then the Court may accept or reject the evidence. However, neither party may call the third-party or the third-party may have become unavailable since the interview with the psychiatrist. If the third-party is not called, or if the evidence of the third-party is rejected by the Court when called, then the Court may be put in the position of having to extrapolate the tainted parts of the Inspector’s evidence. In a nullity case the Court cannot abdicate its responsibility for assessing the witnesses. When it comes to deciding the issues confronting the Court then the buck firmly lands on the desk of the Court and cannot be shifted to the inspector, however experienced and respected the medical inspector may be. I reiterate the robust assertion of the judge’s role made by Murphy J. in KWT -v- DAT [1992] 2 IR 11 at page 21 when he said:-

21. I would echo the view expressed by Kinlen J. at page 75 that:-

22. It is surprising, in a State in which the institution of marriage is noted with approval in the Constitution and where marital status is accorded respect, that cases, in which a couple went through a marriage ceremony more than twenty years ago and from which liaison there may be a number of children, should now be coming before the court in nullity cases based on psychological grounds without there being a legitimus contradictor to defend the marital status of the parties which might be thought to affect the entire community.

23. Accordingly I have come to the conclusion that the Medical Inspector in the present case should operate within the terms of the Order of the Master and should interview the parties and report without moving into the contentious areas of interviewing third-party informants. This has the advantage that he is operating within clear parameters set by the order of the Court and will thereby retain the confidence of both parties. Furthermore this should reduce the sources of conflict between a party and the psychiatrist. This also avoids the inspector being put into the difficult role of having to decide which third-party informants to interview if any. Hopefully it will also avoid the difficulty caused by one of the parties orchestrating third-party informants in an unscrupulous way and producing third parties who have ulterior motives and partisan bias. This restricted inspection on the part of the psychiatrist ensures that the Court remains in control of the inquiry.

24. If the Medical Inspector interviews third-party informants there is the peril that the third-party witness may not turn up at the hearing or may be exposed as a charlatan on cross examination. The report based on the psychiatrist’s expertise and interviews only with the parties avoids the problem of the Court having to work out how much of the inspector’s report is based on what the inspector heard from a witness whose evidence the Court has not heard or whose evidence the Court has rejected as false. The Court avoids being put in the position of having to try to unscramble an omelette in respect of which two of the four eggs have turned out to be bad. There are very real problems in reality about a Court having to extrapolate sound parts of an Inspector’s report which have not been tainted by hearsay or evidence which has been rejected. A further consideration is that the Court is seen to be in control of the proceedings and that justice is seen to be done and the perils from hearsay and loss of confidence on the part of the parties in the conduct of the proceedings from an expanded role of the medical inspector. By adopting this procedure in the present case the Court asserts that the ultimate assessment of witnesses and of the parties is going to be made by the Court. It is safer for the Court to stick to the ordinary rules of evidence as suggested under Section 8 of the 1870 Act on the lines that evidence should be given viva voce in Court. If the inspector has based part of his assessment on contaminated evidence then this is going to cause problems in the future when his report is considered by the Court and there may be real difficulties in unscrambling the part of the omelette which has been contaminated by hearsay or false and rejected evidence.

25. It is clear that the Matrimonial Causes and Marriage Law (Ireland) Amendments Acts, 1870 and 1871 envisaged sworn evidence being heard viva voce in Court. While there is provision for evidence to be given on Affidavit or on commission nevertheless the theme is that witnesses should be sworn and examined orally. Indeed Section 6 of the 1871 Act gives the Court powers and authority to enforce the attendance of persons required by it. Section 19 of the 1871 Act makes any person who shall wittingly give false evidence liable to the penalties for wilful and corrupt perjury. In the old Ecclesiastical Courts a party who had not a personal interest in the suit was never allowed to intervene. This is apparent from the case of Ex parte Verax, in re Chaddock -v- Chaddock XXIX Law Journal 1860, Probate Magistrates Cases decided on 28th January, 1860 where a person not having a personal and private interest in a suit for dissolution of marriage cannot be made a party to such suit for the purpose of communicating to the Court by placing on the record matter which might legitimately be inquired into by the Court, mero motu, and irrespective of the pleadings between the parties, and which if proved would legitimately influence their judgment, whether such matter constitutes an absolute bar to the prayer of the petition or enable the Court to exercise its discretion thereon. It seems that the Court has no power to admit any other parties to appear in a suit for dissolution of marriage than those pointed out by the 27th and 28th Sections of the 20 and 21 Vict. C. 85. On 20th January, 1860 the same Court composed of the Judge Ordinary, Hill J. and Keating J. in Y -v- Y refused to allow the intervention by a third-party who, although he had no legal private interest, prayed to be allowed to intervene at the hearing to prove that the wife had herself been guilty of adultery. While these cases were under different statutes and not in Ireland they do illustrate that the courts have always been reluctant to allow persons who are not parties to an action to intervene. If a third-party informant has information which is of assistance to the Court then that person can be called as a witness at the hearing before the Court. Indeed it is not infrequent that a psychiatrist, either as the inspector appointed by the Court or as an expert witness engaged by one of the parties, may with the permission of the Court sit through the evidence being given by a number of witnesses in the nullity proceedings. In this way both the consultant psychiatrist and the Court witness the demeanour and hear the evidence of the witnesses. Of course, neither Counsel nor the Judge may ask the witness the questions which the psychiatrist would have asked and the environment and atmosphere may not be as appropriate as the psychiatrist would wish. Nevertheless there may be advantages of expedition and lack of duplication and the consultant psychiatrist can be asked if what he has seen and heard in Court casts a new light on the subject matter of his inquiry. I should add that, unlike in Chaddock -v- Chaddock and Y -v- Y, there was no question in the present case of there being any intervention by a third-party, however the cases are illustrative of the courts being chary of widening of the scope of the enquiry and of intermeddling by persons who may be partisan and who are not actually called to give evidence by one of the parties before the Court.

26. While these conclusions with regard to the scope of the medical examination as envisaged by the Master’s Order may appear to be definitive and hopefully will assist the medical inspector, nevertheless this is not the end of this excursion into the law of nullity.

27. There is a proviso to add to the conclusion that the medical inspector is confined to interviewing the parties. While this is the general rule under the Matrimonial Causes (Ireland) Acts of 1870 and 1871 and under Order 70 Rule 32, nevertheless it may well be that if both parties were to consent to the medical inspector interviewing third-party informants, then the Court in the particular circumstances of the case might sanction such an interview. The case of Thompson -v-Thompson reported in the Solicitors' Journal of 3rd February, 1961, Volume 105 reinforces the need for the medical inspector to preserve his role as a non partisan officer of the Court who communicates with the parties representatives only through the Court. In the Thompson case the husband petitioned for annulment of marriage on the ground of his wife's wilful refusal to consummate it and the wife by her answer said that the marriage had been consummated. A medical inspector was appointed to examine the parties and his report did not conflict with the wife's case in her Answer. However, at the hearing of the petition in April 1960 the inspector gave evidence which supported the husband’s case and the marriage was annulled. The wife applied for a fresh medical examination and this produced a report contradicting the evidence given by the medical inspector at the trial. The husband’s solicitors then informed the wife’s solicitors that they had written to the medical inspector and had also spoken to him. The Court of Appeal rescinded the annulment as there had been a communication other than through the Court with the non partisan medical inspector without notice to the other side and this gave the impression that something untoward had occurred.

28. While it is clear in the present case from Paragraph 4 of the Affidavit of the Petitioner which was sworn on 10th March, 1998, that it was the Petitioner’s opinion which he expressed to Dr. Byrne that it would be important that Dr. Byrne should speak to the five third-party informants, nevertheless Dr. Byrne has been careful to keep both Solicitors aware of this request and prudently he has neither looked at the contents of the diary nor has he interviewed the suggested third-party informants, although he has indicated that in making a normal clinical assessment as a psychiatrist he might well interview other persons who know his patient.

29. The Family Law Act, 1995 was enacted on 2nd October, 1995. Section 38 gives the Circuit Court, concurrently with the High Court, jurisdiction to hear and determine proceedings under the Act and gives the Circuit Family Court a concurrent jurisdiction with the High Court to hear and determine proceedings for a decree of nullity. Section 47 gives the Court power of its own motion, or on the application put in that behalf by a party to the proceedings, to give such directions as it thinks proper for the purpose of procuring a report in writing on any question affecting the welfare of a party to the proceedings or any other person to whom they relate from such Probation and Welfare Officer as the Minister for Justice may nominate or by such person nominated by the Health Board or any other persons specified in the order. Subsection 6 makes it clear that Subsection 1 applies, inter alia, in relation to an application for a decree of nullity. While the heading in the margin is entitled “Social Reports and Family Law Proceedings” this may be misleading as the Court is clearly given wide discretion as to who should be appointed to prepare the report. I understand from Counsel that the section is used in the Circuit Court for the appointment of psychiatrists to prepare a report for the assistance of the Court. Alan Shatter in the fourth edition of his “Family Law” in 1997 at page 215 wrote:-

30. The medical inspector was duly appointed by the Master of the High Court on 14th May, 1997 with the order being in the traditional format as it has evolved to cover psychiatric examination and report. There is no suggestion that Section 47 of the 1995 Family Law Act was in the contemplation of either of the parties or of the Master. I do not think that the making of the order under Order 70 Rule 30 precludes the Court from making a further order under Section 47 of the Family Law Act, 1995 although the Court would probably deprecate any duplication and incurring of further costs. However, if there is to be an appointment of a medical inspector under the provisions of Section 47 then clearly this must be done by way of motion and affidavit on notice to the other party. The wording of Section 47 is succinct and perhaps cryptic. It is preferable that the Court should not anticipate the arguments which may be made on such a motion brought under Section 47. However, since directions have been sought by the parties and the medical inspector wishes to have guidance, it may be helpful if I set out a few preliminary thoughts on the matter subject to the stern proviso that they are only tentative and anticipatory and accordingly may prove to be insecure guidelines. With some trepidation I suggest that the inclusion of nullity by the Oireachtas in Section 47 was intended to give wide scope and discretion to the Court in giving directions to the person directed to prepare the report. It is likely that such person will be an expert and accordingly the expert’s evidence and the contents of the report will be subject to all the usual rules of evidence. What befell the evidence of the psychiatrist in RT -v- VP [1990] 1 IR 545 is a salutary lesson. At page 551 Lardner J. said:-

31. The lesson to be learned from these cases is that if objection to evidence is correctly taken on the grounds of hearsay, then unless it fits into one of the exceptions to the hearsay rule, then the evidence is likely to be excluded as inadmissible. The facts upon which an expert’s evidence is based must be proved by admissible evidence (per Lawton L.J. in R -v- Turner [1975] QB 834 at p. 840). In other words, if an expert relies on the existence of some fact basic to the issue on which he expresses his opinion, that fact must be proved. In many cases an expert will have no personal knowledge of the facts upon which his opinion is based. In such a case, the expert should state the hypothetical facts on which he has based his opinion. It is often convenient that the facts of the case are proved by other witnesses and then the expert can express his views on the basis of admitted or proven evidence. In some instances where the expert has personal knowledge of the facts, for example where he had visited the scene of an accident or examined an exhibit, he is in a position to give evidence as to both fact and opinion. In R -v- Turner Lawton L. J. warned that if the expert had been misinformed about the facts or had taken irrelevant facts into consideration or had omitted to consider relevant ones, in cases in which there is doubt as to what the real factual issues are until factual evidence has been all given, it may be sensible to postpone expert evidence until all the factual evidence has been given. An expert may not prove facts upon which his opinion is based unless he has personal knowledge of them because this would be a breach of the rule against hearsay, but nevertheless he is entitled to rely upon such facts as a part of the process of forming an opinion and in this respect, is not subject to the rule against hearsay in the same way as a witness of fact who is not an expert. This distinction was explained by Megarry J. in English Exporters (London) Limited -v- Eldonwall Limited [1973] 1 Ch 415. At p. 421 Megarry J. said:-

32. It may be salutary to note that in Jude Mapp -v- Gilhooley [1991] 2 IR 253 the Supreme Court asserted that it was a fundamental principle of the common law that for the purpose of civil and criminal trials viva voce evidence should be given on oath or affirmation. There were no statutory exceptions to this general principle for trials in civil cases. The Plaintiff had been five years old when he was injured while playing a game of trains in the school playground. He was eight at the date of trial and told the trial judge that he did not understand the meaning of an oath. He was permitted to give unsworn evidence. No objection was raised by the Defendant. At page 264 McCarthy J. said:-

33. If inadmissible evidence is permitted to creep in to the facts on which an expert witness forms his opinion, then like a bad apple it may corrupt the rest of the apples in the barrel or the rest of the experts' evidence.

34. It has long been recognised that the fact that an opinion is expressed by an expert lends no additional weight to any fact upon which it is based if he has no direct knowledge of those facts:-

35. Where an expert relies on the existence or non-existence of some fact which is basic to the

36. Counsel for the Respondent suggested that Section 47 was in the nature of a graft onto the former procedure for the appointment of a medical inspector. Curiously, there is no cross reference to the Matrimonial Causes and Marriage Law (Ireland) Amendment Acts, 1870 and 1871 in Section 47 nor any linkage to Section 13 of the 1870 Act which provided that the Court was to act on the principles of the Ecclesiastical Courts. It seems clear that this is a new and distinct provision in Section 47 and that the procedure by way of motion is much simpler and considerably less elaborate and constrained than the conventional mode of appointment of an inspector under Order 70 Rule 32. Incidentally, Statutory Instrument No. 84 of 1997 which came into operation on 27th February, 1997 provides by Order 78 Rule 24 of the Circuit Court Rules for interim and interlocutory applications. At Rule 24(d) provision is made for applications for the appointment of medical and/or psychiatric inspectors in respect of the Applicant and/or the Respondent and for applications to be made on motion on notice to the other party. Procedures are laid down for the purpose of the identification of the parties to the County Registrar or his/her nominee and no inspection should be carried out unless the procedures contained in the rule are satisfied. The contents of this Statutory Instrument contradicts the suggestion that Section 47 does not contemplate the appointment of a person to report in a similar way as a medical inspector.

37. I propose to hear the parties as to the effects of these decisions and in respect of the matter of costs. I am anxious that the matter should proceed with reasonable expedition. Perhaps if the medical inspector's report is completed and furnished to the Court and to the parties then consideration can be given to what further steps should be taken to complete the preparations for the hearing of the case.