High Court of Ireland Decisions

1. This matter, which was heard on the 7th and 8th of June last, is an application by the Plaintiff, in person. The Respondent as fourth named Notice Party, appeared in person, her Counsel and Solicitor having come off record. Mr. McDermott S.C. appeared for the first named Notice Party. There was no appearance on behalf of the second and third Notice Parties.

2. The matter arises in relation to an appeal from an Order of the Circuit Court dated 23rd July 1999 refusing the Applicant leave to adduce certain documents including Pleadings in evidence before the second Notice Party (the Barristers Tribunal). A previous Order of the Circuit Court, by consent, dated 29th June 1998 provided for the divorce of the Applicant and the Respondent pursuant to Section 5 (i) of the Family Law (Divorce Act) 1996.

3. The Applicant subsequent to that consent Order, made a complaint in respect of the first named Notice Party to the Barristers Tribunal. The appeal from the Circuit Court Order was partly heard, on 22nd March last, by Mr. Justice Smith who discharged himself when the Applicant was in the process of examining a witness who had previously appeared before him.

4. The Barrister's Tribunal by way of preliminary decision, precluded the Applicant from referring to documents arising out of the Family Law proceedings in the Circuit Court without leave of that Court.

5. An application was made to the Circuit Court on the 23rd of July, 1999. In her judgment the learned Circuit Court Judge held that it was not in the public interest that the

6. Applicant’s application be granted as there had not been a case where the Family Law in

7. There had been a number of preliminary applications during that hearing which were also made at this hearing. The first applications related to the appointment of a McKenzie friend, which was granted (as it had been at the hearing of 22nd March last). The second application related to the presence of a stenographer was also granted. A third application in relation to the presence of a journalist was not pursued at this hearing. No objection was taken by the Defendant nor by the first named Notice Parties regarding the absence of a formal Notice of Appeal. It would appear that no objection had been taken at the previous hearing.

8. The Applicant’s grounding Affidavit was sworn the 2nd of December, 1999. At paragraph 2 the Applicant says that he is appealing the judgment of the Honourable Judge of the Circuit Court and is asking this Court to vindicate his constitutional rights.

9. At paragraph four of his Grounding Affidavit he says that he did not attack the Order of the 29th of June, 1998 as he did not think it either appropriate or necessary to do so as his application was specifically for the sole purpose of enabling the Barrister's Tribunal to consider his complaint. Nonetheless he says that, as the Judgment of the Circuit Court in relation to a waiver of the in camera rule raised that matter he would present evidence in that regard.

10. The Applicant further avers that the Circuit Court was mislead in relation to the views of one of his children regarding the application for a waiver of the in camera rule. Finally, the Applicant says that the Court did not adequately address the matters of fact or of law in the Affidavits, submissions and oral presentations made to it.

11. The application before this Court is, accordingly, not an appeal against the Order of the 29th of June, 1998 (the consent Divorce Order) but against an Order of the 23rd of July, 1999 wherein the Circuit Court refused the Applicant's application to waive the in camera rule in relation to the Family Law hearing of the 29th of June, 1998. The Applicant appeals that decision for the sole purpose of allowing the Barrister's Tribunal to investigate his complaints of professional misconduct against his Barrister.

12. The transcript of the judgment of the Circuit Court of the 23rd of July, 1999 stated that the Applicant accepted the Order of the Circuit Court of 29th June, 1998 and continued:-

13. The Applicant, in this Court, puts forward six major grounds of appeal. These are as follows:-

14. Moreover the blanket refusal of the Circuit Court related to five items: the decree of divorce; the Section 14 Order; the Consent Order ruled on by the Court; the report of the consultant psychiatrist and all of the Court Pleadings.

15. Section 14 Orders allowing the ex-spouse to transfer the ownership of the family home to her sole name without his consent is, he submits, a document which is a conveyancing document: the Consent Order is a judgment of the Court which, according to the European Convention on Human Rights, should be pronounced publicly.

16. The Applicants position with regard to the summary report of the Family Assessment Report made at the previous hearing was not pursued at this hearing.

17. The Children's Act, 1997 at Sections 23 and 24, relating to the admissibility of hearsay evidence, was opened to the Court. Reference was also made to legal authorities which were decided before those sections came into force.

18. While this ground of appeal may have some substance in relation to an appeal

19. I have no doubt, however, that it is an issue that rankles with the Applicant with regard to the hearing in the Circuit Court which, in the Applicant’s own submission, he does not wish to appeal.

20. The Applicant says that, in this regard, he had two options, first to challenge the conduct of the judge by way of judicial review or secondly to appeal the Order to the High Court. In relation to the first he believed that the trial judge acted reasonably in assuming that an experienced family law Barrister had acted professionally and had adequately advised him and represented his interests in negotiating the Consent Order. Accordingly he did not seek a judicial review. In relation to the appeal he felt he could not appeal a Consent Order as he could not prove that he did not give informed consent or that consent was given under duress.

21. He choose a third option to go back to the same judge to seek to vary the provisions of the Consent Order. The Applicant further submits that the trial judge had more than enough evidence before her in his original application to believe the settlement to be unjust. It was wrong in law to make assumptions about his intentions or his future conduct that he would not challenge the Order.

22. The Applicant's original complaint to the Barristers Tribunal was made in December, 1998. He submits that he was explicitly prevented by the Tribunal from a collateral attack on the Circuit Court judgment by way of the Tribunal’s self-imposed restrictions.

23. In relation to this ground of appeal the Applicant referred to the public interest in maintaining trust in professional services. He referred to legislation governing the practice of doctors, veterinary surgeons, dentists and nurses and solicitors. He pointed out that there is no statutory regulation of Barristers notwithstanding the Fair Trade Commission Report of 1990 at 18.40 and 18.41.

24. The Bar enjoys privileges which are outside legislative control and, to this extent, are, the Applicant submits, immune to democratic supervision. In his submission immunity from suit and the in camera rule are inexplicably linked.

25. The Applicant says that he and all citizens have a right to litigate and to exercise freedom of expression among other rights. Equity does not suffer a right to go without a remedy.

26. Section 34 of the Judicial Separation and Family Law Reform Act of 1989

27. The Applicant refers to section 38 sub-section 5 of the Family Law (Divorce) Act, 1996 and submits that the subsection replaces “shall” with “may be heard otherwise than in public”. The subsection refers, inter alia with Section 34 applying to proceedings under the 1996 Act: Shall Apply to Proceedings but does not alter the wording of Section 34.

28. The Applicant says that if both husband and wife agree there should be no problem in waiving the in camera rule.

29. He referred to the Emergency Powers Act of 1939 which invoked the in camera rule and had the absolute assumption of constitutionality. Section 7(1) excluded persons and prohibited publication of proceedings but was not a blanket provision with only a level of restriction.

30. In relation to the Criminal Law (Rape) Act, 1980 and the amendment Act of 1990 the in camera restriction excludes officers of the Court and bona fide representatives, the press. However, in cases under those acts the verdict is announced in public.

31. In this case, in addition to the submissions and to the extensive exhibits which were presented by the Applicant, evidence had been given on behalf of Parental Equality. The witness for Parental Equality had appeared on another occasion before Mr. Justice Smith and had referred to exposing injustices in the Courts. For this reason Mr. Justice Smith felt himself unable to continue hearing the present case.

32. I had requested the parties whether I could adopt the transcript of the proceedings heard by Mr. Justice Smith on the 22nd of March, 2000 which consisted of the submissions of the Applicant and the initial evidence of the witness for Parental Equality.

33. Having had time to peruse the transcript each of the parties agreed.

34. Accordingly, I have adopted the said transcript and allowed the Applicant an opportunity of highlighting the points contained therein in an attempt, as I informed the parties, to expedite the matter.

35. In relation to the documents the subject of the application to the Court the Applicant submitted that he was not looking for an unfettered waiver of the in camera rule and would accept any conditions that the Court would attach to the waiver. Many of the forms involved were standard forms. The members of the Tribunal, consisting mainly of members of the Bar who, in any event, sit in on other cases, and are together with the other members fit and proper persons.

36. The Applicant is seeking a waiver involving disclosure of documents in a selective manner. He says that it is the only form open to him to pursue his right to complain.

37. His former wife, the Defendant in the original case and Respondent and fourth named Notice Party in this case, opposed the application. She told the Court that she felt that the experience of the application violated a right to privacy and finality in regard to the five year family litigation. In her submission the Applicant is inexplicably bound up with that of his family. The matter of divorce is closed. There should be finality to the matter. The sole reason to pursue Counsel is to induce deviousness.

38. The Respondent stated that since June 29th 1998, two years before the present hearing, the Applicant has caused her to appear in Court eight times: twice in the District Court, five times in the Circuit Court and on a previous occasion in the High Court. She complained of upset, stress and extreme harassment. She said that both the children and herself had hoped that after the divorce settlement which, in turn had followed on five years of difficulties, things would settle down. Having outlined numerous incidents over the two years she submitted that the Applicant’s case is not directed at the first Notice Party but at her and, in her words, was “a mechanism to go on tormenting me”. When the Circuit Court Judge ruled against the Applicant’s application she did not award costs. The Respondent said that she cannot afford to pay any more legal costs which were far more than had originally been envisaged and were due solely to the interminable and exhausting dragging out of the proceedings.

39. On behalf of the first named Notice Party, Mr. McDermott S.C. submitted that he took no stance on the documents. That was a matter for the parties themselves. He pointed out that the Tribunal, by way of extempore decision of the 17th of May, 1999, intends to proceed to have an oral hearing in relation to paragraph 1,5,7 and 8 of the complaints before it. The Tribunal was satisfied that headings 2,3,4 and 6 were either directly involved with the Court case and the determination by the Circuit Court approving the settlement or have such an intimate connection that it is contrary to the public policy foundation of Barristers immunity to allow such headings of complaint to proceed and that it is not open to the Tribunal, on the established case law, to hear such complaints.

40. In Mr. McDermott's submission the immunity from suit of Barristers has nothing to do with the in camera rule.

41. If the Applicant has a concern with regard to children he should go to the Court which has seisin of the case where, of course, no issue can arise with regard to the in camera rule. It is not in the public interest that such issues are put to the Tribunal.

42. The public interest bench mark is determined by the legislature. Children's reports are for the Court only. They relate to the health and welfare of the child. If the conclusions of a report are put to the Tribunal it does not achieve justice. There can be no partial publication of such reports.

43. Mr. McDermott emphasised that the Tribunal had provided that there be no collateral attack on the decision of the Circuit Court and that the Applicant had never sought to amend, vary or appeal the content of the Order of the Circuit Court or find fault with the conduct of the Court itself.

44. In his submissions the appropriate forum is the Circuit Court Judge in relation to the variation of the in camera rule.

45. The Applicant in reply stated that the cases referred to by Mr. McDermott provide that the Court has discretion.

46. The Applicant requires the Consent Order and the two sets of Pleadings for the Tribunal to show the inaccuracy of dates relating to income and the lack of explanation regarding the Consent Order.

47. The Applicant was asking the Court to deal with a legitimate complaint regarding immunity from suit. The distress to the Respondent was not intended. As an alternative to his raising of the issue of maintenance the Applicant would accept independent mediation.

48. While a number of issues would seem to arise in respect of the submissions and evidence many of these would seem to be in the nature of an appeal from the decision of the Circuit Court.

49. The net issue arises in respect of the hearing before the second Notice Party, the Barrister's Tribunal. That is whether certain documents relating to the Circuit Court proceedings can properly be opened to the Barrister's Tribunal. While the Applicant’s case is for a waiver of the in camera rule in relation to all of the family proceedings, he states that he requires the two sets of pleadings and the consent Order in order to raise the issue of maintenance.

50. It is necessary, accordingly, to examine the nature of the Barrister's Tribunal and the extent of the in camera provisions relating to Family Law matters in the light of the decision of Laffoy J in MP -v- AP (1996) 1IR and the decision of Barr J in Eastern Health Board -v- Fitness to Practice Committee of the Medical Council 3rd April 1998.

51. The functions of the Tribunal are stated to be to investigate allegations of misconduct made by any person or body against a practising Barrister and to decide whether such Barrister has been guilty of misconduct constituting a breach of the Code of Conduct of the Bar or constituting a breach of proper professional standards.

52. The said Tribunal is composed of seven members, five of which are practising Barristers appointed by the Bar Council. A member is chosen by each of the Irish Business and Employers Confederation and by the Executive Council of the Irish Congress of Trade Unions.

53. The procedure is initiated by way of complaint form sent to the secretary of the Tribunal and forwarded by the secretary to the Barrister concerned who must reply within a period of fourteen working days. An oral hearing may be requested by the Complainant or the Barrister or, indeed, by the Tribunal whether or not an oral hearing is sought.

54. The Tribunal shall be entitled to seek further information from either the Complainant or the Barrister. In the event of the Complainant refusing or failing to provide such further information within the time specified by the Tribunal, the Tribunal shall be entitled to reject the complaint by reason of such failure or refusal.

55. In the event of the Barrister refusing or failing to provide such further information within the time specified by the Tribunal, the Tribunal shall be entitled to proceed with the hearing of the complaint in the absence of such Barrister.

56. All proceedings before the Tribunal should be heard in private and all such proceedings, and all documents connected therewith, including the decision, shall be confidential as between the Complainant, the Barrister and the Tribunal. The Tribunal shall be entitled to reject a complaint on the grounds that the Complainant has breached the confidential nature of such proceedings. Breach of the confidential nature of such proceedings by a Barrister shall constitute conduct contrary to proper professional standards.

57. The Tribunal, in addition, may request the attendance of any person to give evidence before it, irrespective of whether such person is produced as a witness by the other party. The Tribunal may also request any person, whether witness or otherwise, to make available any documents or other evidence which it wishes to consider irrespective of whether either party request the production of such documents or evidence.

58. The Tribunal issued a decision on preliminary issues on the 17th of May, 1999 in respect of a complaint dated the 7th of December, 1998 made by the Applicant herein.

59. The only aspect of that preliminary decision that concerns this Court relates to the Complainant having divulged information to the Tribunal emanating from protected information in in camera proceedings.

60. The Tribunal considered the arguments made in relation to the in camera rule and had particular regard to the decision of Barr J. in Eastern Health Board -v- Fitness to Practice Committee of the Medical Council, delivered on the 3rd of April, 1998.

61. In it's preliminary decision the Tribunal proceeded on the basis that the law as laid out in that judgment was binding on it in that there was not an absolute embargo on the publication of evidence adduced in the course of in camera proceedings but there was an established practice that the Court had a discretion to permit others, on such terms as the judge thinks proper, to disseminate information derived from such proceedings where the judge believes that it is in the interest of justice so to do (page 7 of the preliminary decision).

62. The Tribunal was of the view that it should be possible for the Complainant (the Applicant herein) to prosecute his complaint based upon and limited to the material generated by his side in the matrimonial proceedings and without requiring access to the documentation produced or generated by his wife and without access to any evidence adduced in the course of in camera proceedings.

63. The Tribunal noted that if this was not the case, the Complainant had indicated that he would apply to the Circuit Court Judge to obtain the consent envisaged in the Eastern Health Board decision above.

64. Two recent cases are relevant: MP -v- AP, Applicant [1996]

65. The former case arose out of a complaint made by a party to a Judicial Separation and Family Law matter making a complaint to the Physiological Society of Ireland in respect of the Applicant who was a potential witness in the Family Law case.

66. It relates directly to the scope of Section 34 of the Judicial Separation and

67. Family Law Reform Act, 1989 which applies also the Applicant’s and Respondent’s divorce

68. Laffoy J. held that Section 34, providing that proceedings taken under the Act shall be heard otherwise than in public, was contravened by the making of complaints to the Physiological Society of Ireland. Such complaint had divulged to the public confidential matters arising out of proceedings taken under that Act. Moreover, the complaint to the Society could not be prosecuted without further infringement of Section 34 in light of the fact that the complaint concerned the contents of a letter which commented upon the Defendant's evidence on Affidavit in support of a Motion in proceedings taken under the Act of 1989.

69. The Court, in that case, also held that there was ample authority to support the proposition that a witness is protected from civil proceedings, not merely an action for defamation, in respect of his evidence in the witness box and statements made in preparing evidence. Having cited such authority Laffoy J. continued:-

70. The decision of Barr J in the latter case Eastern Health Board -v- Fitness to Practice

71. The primary question for determination in that case was whether there was an absolute embargo on the production in subsequent proceedings of information which derives from or was introduced in proceedings protected by the in camera rule. Two subsidiary questions were required to be addressed in relation thereto. First, does the rule include all documents, records and information introduced in proceedings protected by the rule. Secondly, does the embargo necessarily imply that alleged professional misconduct or incompetence relating to documents furnished, information supplied or evidence given in proceedings protected by the rule, cannot in law be the subject matter of investigation in subsequent proceedings, including criminal proceedings or an inquiry by a professional body.

72. If the Court were to decide the primary issue in favour of the Committee, two subsidiary matters arose. First, does the Court have a discretion to impose terms regarding the disclosure of such information. Secondly, does the discretion include a requirement that the proceedings for which such information is sought must itself be conducted in camera.

73. Having considered the authorities the Court held, inter alia , that the primary reason for the in camera rule is to provide protection for minors from harmful publicity arising out of the disclosure of evidence and other related matters in protected proceedings. There is no absolute embargo on disclosure of evidence in all circumstances.

74. The Applicant relied, in particular, on the remark in the judgment relating to professional misconduct in the following terms:-

75. The Court also held that in considering a conflict between the public interest or the interest of a person seeking disclosure on the one hand, and the interest of an individual in retaining the full benefit of the in camera rule on the other hand, the Court is bound by the concept that the paramount consideration is to do justice.

76. The established practice at common law recognised in England and this jurisdiction (judgment of Budd J. in PSS -v- JAS & Others ) that the Court hearing proceedings in camera has a discretion to permit others on such terms as the judge thinks appropriate to disseminate information derived from such proceedings.

77. The use of evidence emanating from an in camera hearing in other legitimate proceedings where the public interest or an interest of the protected person or some other interested party requires, includes not only related litigation in Court but also other non-judicial proceedings such as a statutory inquiry by a professional body into complaints made to it by professional negligence or incompetence of one of its members (Cazalet J. in A County Council -v- W & Others [1997] 1 F.L.R. 574 (in relation to the welfare of children).

78. While noting that it is contempt of Court for any person to disseminate information derived from proceedings held in camera without prior judicial authority Barr J. is of the view that whether the rule applies mandatory or by way of judicial discretion does not affect the authority of the Court to permit disclosure where justice requires that disclosure should be made. In such case the Court should take all reasonable steps to protect the interest of minors and others who are intended to have the benefit of the rule.

79. The Court was further of the view that in that case there was an imperative public interest that complaints should be fully investigated by the Committee and that this necessarily entailed discovery of all relevant records for use of the inquiry subject to certain conditions.

80. It would seem that decision of Eastern Health Board and a County Council -v- W relates to the in camera rule in

81. The provisions of the Judicial Separation and Family Law Reform Act of 1989 and the Family Law (Divorce) Act, 1996 insofar as they provide for hearings to be held otherwise than in public does imply an absolute embargo on the production, in subsequent proceedings, of information which derives from or was introduced in proceedings protected by the rule.

82. It would seem to follow from the above authorities that such information, whether in documentary form or otherwise, protected by the in camera rule can not be the subject matter of investigation in an inquiry by a professional body having a duty to investigate such complaints.

83. It appears, in any event, that reports, documents and evidence furnished for the assistance of the Court, such as psychiatric, psychological or family reports intended for the use of the Court in arriving at its decision, whose authors are not subject to any complaint or inquiry by their respective professional bodies could not, without the consent of the Court be disclosed.

84. That is not to say that the Barristers Tribunal cannot conduct any inquiry in relation to the complaint.

85. The disciplinary code for the Bar of Ireland provides that all proceedings before the Tribunal shall be heard in private and all documents connected therewith including the decision, shall be confidential as between the Complainant, the Barrister and the Tribunal. There are further provisions relating to the breach of such confidentiality. I am satisfied that the Tribunal can conduct an inquiry.

86. However, in relation to proceedings under the Act including the evidence given by way of Affidavit and the limited case evidence in the consent proceedings these can not be made available to the inquiry.

87. This provision seeks to protect the parties and their family in divorce and separation proceedings by requiring such proceedings to be held in private within the Court system.

88. The Applicant has put forward six grounds of appeal and, in view of the above, I should now deal with each of them.

89. Proceedings are what goes on in relation to litigation. It covers all pleadings, evidence, whether oral or on Affidavit and all Orders and Judgments in relation to that litigation.

90. In relation to the example of a conveyancing request for claims, Pleadings and Orders made in Family Law proceedings Morris P stated that he had no doubt that Solicitors for the Vendor are not free to furnish such as they are documents covered by the in camera rule . (Tesco Ireland Limited -v- McGrath and Anor (unreported, 14th June 1999 at page 15).

91. The President of the High Court continued, at page 17, as follows:

92. While this ground of appeal may have some substance in relation to an appeal against the substantive Order of the Court, it seems to me that it has no application to the present appeal against refusal to lift the in camera rule .

93. I have no doubt that it is an issue that concerns the Applicant with regard to the proceedings in the Court below which, in the Applicants own submission, he does not wish to appeal.

94. In these proceedings, however, the Applicant says that he wished to raise the issue of maintenance which was determined by the Circuit Court Consent Order . Indeed, the Applicant told this Court, in relation to the disquiet of the Respondent, that he would accept mediation in relation to the issue of maintenance as an alternative to the present appeal.

95. This would seem tantamount to an appeal against the substantive Circuit Court Order which, in the Applicant’s own submission, he does not wish to make. If this were the motivating factor in pursuing his complaint before the Barrister’s Tribunal it would seem to involve a contradiction - an attempt to appeal the substantive Order indirectly.

96. The right of the Applicant to pursue a complaint does not, of course, depend on whether or not he wishes to appeal the substantive Order.

97. Public interest is reflected in Article 34 (1) of the Constitution which provides:

98. Such special and limited cases are prescribed by law in relation to judicial separation and divorce which provides that such proceedings “shall be heard otherwise than in public”.

99. That section does not necessarily mean that proceedings be restricted to Courts established by law. Parties could decide to avail of a mediation service or to appoint an arbitrator under the Arbitration Acts which would give finality with no appeal or to proceed in the Circuit Family Court or High Court. All such proceedings must be heard otherwise than in public.

100. To that extent the interests of resolution of family disputes in private outweighs the public right that Justice be administrated in public.

101. Accordingly, the public interest in maintaining trust in the professional services of Barristers can not be an issue. The in camera rule is not so much a rule as a statutory provision in relation to Family Law proceedings. It does not, in any way, affect a citizens right to litigate and to exercise freedom of expression among other rights but it does restrict Family Law proceedings from being involved in such other proceedings.

102. While Murphy J in F -v- F (Irish Times, 8th July 1994) allowed part of the case to be heard in public he relied on Section 34 to exclude the media from the earlier part of the case because facts about the marriage of a couple involved in the case had to be determined and he was assured that the balance of the case did not involve intrusion into their matrimonial affairs.

103. It would seen to follow that even where both husband and wife agreed that to disclose matters arising out of such proceedings that they would be in contempt of Court.

104. Accordingly, I refuse the application .