Neutral Citation No: [2005] IEHC 331
THE HIGH COURT
[2003 No. 41 M]
IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT 1996
BETWEEN
S.D.
APPLICANT
AND
B.D.
RESPONDENT
DECISION of the Master of the High Court 19th October, 2005.
First, to put the record straight. Although these proceedings started with the issuing of the Summons in March 2003 no motion for discovery was issued until 11th April, 2005. The motion issued then was returnable before me on 27th April, 2005, two weeks later. It was adjourned a number of times without having been opened and then opened and heard over a couple of dates. Counsel for the applicant appeared to be somewhat surprised at the fact that discovery sought was not hers as a matter of entitlement. Instead, not having been convinced by the case made on the applicant's behalf the court offered a further opportunity for submissions. Senior Counsel was then briefed who, in effect, complained about delay in dealing with the application, and contended that the order ought to have been made since all the documents sought were relevant.
Two points need to be made with clarity. One: delays in this case have not been of the court's making. Two: discovery, in this and every case, is a matter to be decided within the discretion of the court, such discretion to be exercised with a view to ensuring a fair trial. Relevance is a necessary but not sufficient pre-condition for a discovery order.
This is a somewhat unusual case. What the court at this point has to consider is whether the Separation Agreement signed by the parties in 1985 after 14 years of marriage, was a "clean break". If so, there will be no probing by the Court of the current financial position of the parties, and discovery of documents towards that end would be pointless, or worse: an abuse of process. Since the characteristics of a "clean break" have been explored and set out in a number of judgments, the court can examine the Separation Agreement in this case and determine its character as a matter of simple legal construction.
Perhaps conscious of the possibility that the court might hold that the 1985 Agreement was a clean break and a bar to future litigation, the applicant pleads in the endorsement that the Agreement was rooted in misinformation and consequently of no legal effect. Curiously, the applicant does not, however, seek any declaration to that effect. If so, of course, the court would have to address the current position as if no such agreement existed and the question of whether it was a "clean break" would not arise. The applicant is therefore apparently content to return the principal family home to the matrimonial property "pot", to be dealt with as the court thinks best now that none of the five children is a dependent any longer.
The court cannot overlook the fact that on appeal from a Circuit Court decision in proceedings commenced in 1986 by the applicant, the High Court in 1990 varied the maintenance provisions of the 1985 agreement by raising the maintenance from £300 for wife and dependent children (varied upwards perhaps partly by reference to CPI inflation of 17%) to £299.58 for the wife and £120 for the four children then residing with their mother. This court order seems to suggest that the High Court did not, in 1990, consider that the 1985 Agreement was final. Maintenance at these rates was paid apparently until May 1998. They then ceased, but no written complaint about same was made until 2002. The respondent says that they ceased by agreement for the reason that the applicant was then cohabiting with another man, and that the complaints only started when this other relationship ended.
The 1990 decision notwithstanding, it would still be open to the court in these present proceedings to conclude that the 1985 deed was intended to be a "clean break", or even a break which dealt conclusively with everything subject only to the CPI adjustments to the weekly maintenance. But the case law in this area suggest a strong reluctance to reach such a conclusion.
It appears from a reading of the decision of the Supreme Court in DT v. CT [2002] 3 IR 334 and of the High Court on Circuit in A(W) v. A(M) (Unreported, 9th December, 2004) that the Court may consider a Separation Agreement to be final if its terms made proper provision for the parties. The Court will also consider, in addition to the matter of proper provision, whether it would be "just" to re-open the agreement. In the latter case (unlike the former), the husband's post separation prosperity was judged to have been achieved entirely without any contribution from the wife, and the wife's reduced circumstances entirely her own doing. "The conduct of a party in himself (or, of course herself) bringing about the circumstances giving rise to the alleged need for (further) provision is itself of relevance to considering whether such provision should be made, and in what amount" (2004 IEHC 287 p. 13). But that case concerned a separation agreement dated 1993. This case concerns a 1985 agreement. The difference may be central to any decision, having regard to the introduction in 1989 of the new Statutory framework for separation. Furthermore, it seems likely that an agreement will be treated as "final" only in "ample resource" cases which is not the case here: ongoing maintenance provisions would not usually feature in a clean break between spouses.
It is perhaps even less likely in this case that the court would hold that the 1985 deed was a clean break if it is established to the court's satisfaction that the applicant, then with five children under thirteen to manage, under severe financial stress and subject to rumours of the respondent's intention to emigrate, felt she had no option to but to agree as she did. It was, in effect, a solution for her short term needs, the court might reasonably conclude.
Indeed, the respondent having sought and furnished discovery already, it would be odd if the discovery process were now interrupted to allow trial of a preliminary issue as to the long term legal effect of the 1985 deed to take place. The parties are already well into the discovery exchange.
This is an application for further and better discovery by the respondent. The respondent's affidavit of means was sworn on 10th December, 2003. He followed this (without Court order) with an affidavit of discovery sworn 29th June, 2004, covering most of the period 2000 to 2003.
The applicant's solicitors wrote on 30th September, 2004, threatening a motion for further and better discovery unless the matters listed in a "Schedule of Queries" had been attended to within 21 days. The respondent's solicitor promised by letter of 4th November to send on "the relevant information" in relation to the two Companies mentioned, as soon as the Company accountant (then on maternity leave) was back in the office "in about three weeks' time." Writing again on 30th January, 2005, the solicitor "confirmed that our client is in the process of collating all of his financial documentation in order to complete his discovery in this matter".
The "Schedule of Queries" combines requests for information ("details of…") and requests for documents. In bringing this application, the applicant's solicitor has not bothered to distinguish between the two, simply reading the accountant's list, word for word, into the notice of motion. The Court can only deal with the requests for documentation.
The accountant offers reasons for his requests. He does not inform us as to whether he has found any discrepancies between the respondent's affidavit of means and his discovery. (I note the strange content of paragraph 6 of the former!).
The request for discovery covers five areas. I cannot but be influenced by the fact that the fifth category (Pensions/Life Policies) is demanded even though the respondent has already deposed to having "none" of these. This accountant is simply looking for missing pieces, and updating for the two years 2004 and 2005 to cover the period of the delays caused by the lawyers. He does not state that he has found evidence of understatement of assets or income between 2000 and 2005. If that is the case, the accountant should depose to the suspicions he has formed and support same by identifying the material which suggests same. On the materials at present before me I can see no need for any of this discovery.
But I am conscious that the respondent has offered to make some sort of further and better discovery. Accordingly it is my decision to strike out this motion and extend the time for such discovery as has already been agreed to by the respondent.
Approved: Master Honohan