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Cite as: [2015] IEHC 58
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Judgment
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Neutral Citation: [2015] IEHC 58 THE HIGH COURT FAMILY LAW [2012 No. 27 M] IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989, AND IN THE MATTER OF THE FAMILY LAW ACT 1995, BETWEEN H. APPLICANT AND
H. RESPONDENT JUDGMENT of Mr. Justice Henry Abbott delivered on the 23rd day of January, 2015 1. In this case the applicant seeks judicial separation from the respondent. The proceedings have reached the stage where the respondent has delivered an affidavit of means. The applicant was not satisfied that the affidavit of means disclosed the full extent of the assets of the respondent and has engaged a forensic accountant to advise and prepare a report on this basis. The parties exchanged affidavits in the applicant’s case grounding a notice of motion dated 18th November, 2013 which sought an order striking out the respondent’s defence to the proceedings on the grounds that the respondent has refused to comply with the order of this Court of 25th July, 2013, and/or on the grounds that the respondent is in breach of duty to make full financial disclosure in the within proceedings, and that the respondent has been guilty of a litigation misconduct. The combination of applications had the effect of creating a case management session. 2. The formal approach of the respondent within the case management session was to serve a notice of cross examination in relation to an affidavit sworn by the applicant’s forensic accountant and also to indicate to the court that the motion had been prepared on behalf of the respondent seeking an injunction against the applicant from using certain documentation, which was alleged by the respondent to have been taken illegally by the applicant, and for an order for its return to the respondent. 3. Matters came to a head during the course of the hearing when counsel for the applicant objected to the admissibility of certain paragraphs of the applicant’s forensic accountant’s affidavit, which she claimed related to the documentation dubiously obtained. There followed a lengthy legal argument on this objection, the main thrust of which I outline as follows:-
(b) Counsel for the applicant, in response, argued that the facts of this case differed from those in Imerman, insofar as Imerman had not reached the stage of delivery or filing of Form E (the disclosure document in the jurisdiction of England and Wales), whereas in this case, the duty plainly rested immediately on the respondent husband to disclose and vouch his assets. Counsel for the applicant also argued that the emphasis of the Irish statutory framework on judicial separation now, by implication, backed up by the constitutional imperative to the courts to make proper provision for spouses in divorce cases, placed a far greater emphasis on disclosure than the system of England and Wales. He also referred to the emphasis placed in the Irish Courts on the inquisitorial role of the family court in separation and divorce cases and cited the judgment of this Court in W. v. W. [2008] IEHC 452 in that regard. He submitted that the judgment of White Michael J. in P. v. Q. [2012] IEHC 593 delivered on 5th July, 2012, is a more appropriate authority relating to the balancing of interests arising from the proposed use of documents and material dubiously obtained. He also agreed with the court that s. 3 of the 1989 Act requiring the satisfaction of the interests of the children of a marriage as a pre-condition to the granting of judicial separation, introduced a stronger element of inquisitorial obligations on the part of the court. 4. I decided to disallow the objection on the following grounds:-
(2) While I would be prepared to accept in as fulsome a manner as was declared in Imerman, the multiple tortuous, criminal, and (in the Irish context), unconstitutional potential infringements on the part of the applicant in this case, the judgment of White Michael J. in P. v. Q. [2012] IEHC 593, referred to above, is now the better authority than the earlier judgments of McMahon J. and Budd J. relied upon by Ms. Clissmann S.C.. Neither of these cases involved the imperatives for disclosure contained in the statutory and constitutional framework of separation and divorce; whereas the judgment of White Michael J. in P. v. Q. [2012] IEHC 593 is set out clearly the need for a balancing exercise in the context of the family law litigation. I find the judgment of White Michael J. particularly instructive in paras. 32, 33, 34, 35 and 36, and I set out same as follows:- “32. This general principle applies to the material ordered to be discovered by the Circuit Court in this case, as the material discovered could assist the applicant in advancing the case set out by him in the Family Law Civil Bill, and undermine the respondent’s case. 33. The issue for the court to determine is complicated by the allegation that the respondent’s privacy was breached illegally when the codes and passwords of her personal laptop were accessed, at a time subsequent to the commencement of family law proceedings. Although disputed by the applicant, the evidence before this Court heard on affidavit would indicate that the passwords and access codes to these particular websites were retained by the respondent in a locked safe. There are many occasions and opportunities in family law proceedings, where parties to the proceedings access information which the other party regards as private, but which has not been obtained illegally. In this case the acquisition of the codes is tainted by illegality. 34. I accept the submissions on behalf of the respondent, that there is a broad principle of constitutional law, that evidence which is obtained by invasion of a constitutional personal right such as a right of privacy must be excluded unless the court is satisfied that the breach was committed unintentionally or accidentally (which could not be the case here) or is satisfied that there were extraordinary excusing circumstances which justify the admission of the evidence in its discretion. It is respectfully submitted that there are no extraordinary excusing circumstances in this appeal. I would accept that principle as applying to a criminal prosecution, in order to protect the absolute right to a fair trial. 35. Where different constitutional rights have to be balanced, different principles apply. 36. A court should always be reluctant to admit evidence or approve discovery, which is tainted with illegality, but that is not to say that on all occasions where illegality is suspected or found, that the evidence so obtained is not admissible. This is particularly so when dealing with the welfare of a child. 37. If the court were only dealing with issues between the parties and not the welfare of the child, the court would have taken into consideration the sexual history of the marriage, and on balance would not make the order for discovery sought.” In that case White Michael J. struck a balance by allowing the admissibility of the evidence in relation to the issues relating to the child, but indicated that it would not be allowed in relation to determining any element of fault in any subsequent judicial separation hearing. White Michael J. thus engaged in a balancing exercise approximating to the application of the Hildebrand rules in the judgment of Moylan J. appealed in the Imerman case. While this case deals with financial matters mainly, and is somewhat removed from the factual matrix with which White Michael J. was concerned, I consider that the pre-eminence given to the interests of the children by s. 3 of the 1989 Act is a matter which gives financial provision under that Act a weight strongly influenced by the interests of the children, as well as of the parties to the marriage. The interests of the parties in having proper provision thus made, are interests which must in fairness and justice, be brought into balance against any alleged wrongdoing on the part of the applicant. (3) I am not persuaded that the principles in Imerman are particularly helpful in the Irish context, especially having regard to the fact that many apparently ample resources cases in this jurisdiction became drowned in debt or the threat of debt post the 2008 downturn, and this Court has often been left in a position at execution stage where it is attempting to salvage any positive residue or equity free from debt for the purpose of avoiding penury and resort to the economic assistance of the state through social services. Imerman, by all accounts, was a case of ample and vast wealth and afforded full scope for the rigorous implementation of the principles of tortuous and criminal liability without being hampered by any apprehension that the assets would “run out”. In this case it is not possible to say without rigorous disclosure, backed up by a full inquiry by forensic accountants, whether this case is in an ample case or is one which could be plagued with the possibility of having to eke out some provision after catering for massive debt, as has been the unfortunate experience in so many cases adversely affected by the post 2008 downturn of recent years. While this Court has the utmost respect for the Court of Appeal of England and Wales which gave the rigorously argued and closely analysed judgment in Imerman, nevertheless I am strongly against accepting the persuasive authority thereof as an absolute guide as to how this Court should deal with the balancing challenges presented to this Court along the Hildebrand lines in future. (4) I am more strongly of the foregoing view having considered the proposed remedies available to the parties seeking provision who had acted illegally and had their entitlement to use documents thus obtained by the application of the Imerman rules, through the use of (a) Mareva injunctions or freezing orders; (b) Anton Piller orders; or, (c) judicial inference or attribution of income or assets. I note that the Master of the Roles (as then was), alluded to the fact that Mumby L.J. had intimated to the court during the course of the preparation of the judgment, that he had never experienced the use by family law practitioners of either the Mareva or the Anton Piller orders (by this it is to be inferred that the use of illegally obtained material was a far easier option as it had not been outlawed by the court under the Hilderbrand rules) however; having experienced the use of Anton Piller orders in this Court, and having found them often to be of limited use in the litigation, but having enormously disruptive qualities, I shudder at the thought of the use of an Anton Piller order in this case having regard to the fact that there are a number of young children living in the home to which an Anton Piller order might be directed, who are still largely protected from the worst consequences of the differences and litigation between the parties. It is difficult to see how a Mareva injunction would have much bearing on a situation where evidence of the existence of assets and their whereabouts and identity would be so thin on the ground that the conditions for obtaining a Mareva injunction would probably not be met. In general, and having regard to the future applicability of such suggestions, the prohibitive cost of complex Mareva and Anton Piller applications would be so disproportionate to the pool of assets available in the average Irish family law case (especially those in the Circuit Court) as to leave the same impracticable. In Imerman, of course, no such problems of lack of proportionality arose by reason of the vast wealth involved, perhaps on both sides. As to the suggestion in Imerman that the adverse inference or attribution of wealth or income is an option available to family law judges to counter any attempts by providers by subterfuge and concealment to withhold information on and identity of assets (while an accepted technique of the Irish Courts over a limited factual matrix), I find that it is an unreliable foundation upon which to build the basis of family law litigation or case management. In this context it is instructive to refer to the judgment of the Master of the Rolls (as then was) at para. 125 of Imerman:- “Coleridge J., another judge with great experience of such cases, made much the same point in J. v. V. [2003] EWHC 3110 (Fam) paras. [16-17] a case involving what the judge described as a network of offshore, largely Liberian, corporations. He continued:-
In order prevent the instigation of an exhaustively searching inquiry, the respondents to such applications are required to be from the outset perhaps even fuller and franker the exposure and explanation of their assets than in convention in onshore cases. Otherwise, skulduggery is instantly presumed. Applicants justifiably believe that advantage has been taken to hide assets from view amongst complex corporate undergrowth. To being the process of disclosure, as here, by, without more, denying legal and beneficial ownership of all important assets in the case by virtue of such arrangements is, quite simply, foolish and unhelpful and once applications of this kind get off on the wrong foot they never regain equilibrium.’” (6) As a further matter related to the foregoing consideration, but which requires special articulation, is the requirement that family law case management should have as its objective to provide enough satisfactory information and vouching documentation to enable a forensic accountant on both sides to produce a dependable and transparent report and set of accounts to assist the court, and the parties to speedily design solutions to the conflict having regard to the provisions of the statutory codes and/or the Constitution. Although the work of forensic accountants is mentioned in Imerman, an analysis of the implications of a rigorous application of the Imerman principles is notably absent from the judgment in Imerman, and if this Court were to be more strongly influenced by Imerman, it would need to reconcile the Imerman principles excluding potential data which would torpedo the discipline of forensic accountants of the calibre who appear before this Court. (7) A further matter which occurs to me is that a strict application of the Imerman principles, as distilled out of the judgment by Mostyn J. in his judgment in U.L. v. B.K. [2013] EWHC 1735 (Fam), could well have far reaching implications for the relationship between solicitors and clients in family law cases to the extent that clients who may be likely to have allegations of dubious activity made against them in relation to documents or information, may not be prepared to disclose the facts surrounding such activities to their solicitors, as to do so would compel their solicitors to take up a position in conflict with their interest of pursuing their family law remedy. On the basis that solicitors and counsel in Irish Courts have over the years honourably discharged their duties towards the court and (in the case of solicitors) very often appearing years after a case had been disposed of to assist with tidying up loose ends such as pension orders and conveyancing aspects - with no financial reward to themselves - it is imperative that they would be left free to pursue the serious business of uninhibited and fearless advocacy for their clients, and would be perceived to be in the position to do so. To allow the Imerman rules to trammel the relationship between solicitor and client would, in my view, result in unpredictable and undesirable consequences which would have the effect inevitably of driving clients away from solicitors and counsel and relying on their own efforts as personal litigants, or falling under the influence of elements which may be unregulated by any professional or statutory code. Such an outcome would, in my view, be very undesirable as it is contrary to the interests of the clients and the public interest to impede the proper advice and representation of clients before the courts. (8) The picture becomes even more complicated when it is considered that on many of these dubious forays all sorts of documents may also be taken which are not protected at all by the laws of privacy or confidentiality. The hapless solicitor, who may have to grapple with the Imerman principles in dealing with the produce of such dubious activity, will be placed under an additional strain in relation to deciding itself which documents should be given the Imerman treatment. The discomfort and downright conflict arising may, I think, be far too much for solicitors with any degree of practicality to bear. 5. The court has already directed that the applicant should give back the originals of the documents to the respondent and the respondent should then disclose the documents and hand them back to the applicant. The documents to be handed back, according to Mr. Durcan S.C., are in the schedules to the applicant’s affidavit sworn on 20th June, 2014. The applicant should be entitled to keep a copy of all documents handed back by her. The applicant is to place the offending USB stick, or other electronic device concerned, in a box to be kept in the custody of the Court Registrar until such time as it/they are given to an expert for analysis and reproduction to be agreed by the parties. As the documents allegedly removed by the applicant are to be used for the purpose of the applicant’s accountant completing the financial report and accounts in the case, the issue of its admissibility is determined, however; I have indicated in discussion that the conduct of the applicant in not only removing the documents, but also dealing with the removal up to her ultimate admission of the removal in her affidavit of June, 2014, is a matter that has to be dealt with further and I have indicated that the parties may address me in relation to the incidence of costs as a balancing item without prejudice to any other balancing procedure which might be undertaken by the trial judge. Needless to say, further self help activities by the applicant are discouraged by the court - such activities might yet have to be met by an “Imerman” approach - or sterner action. |
