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Cite as: [2001] 1 IR 599, [2001] IESC 2

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McG. v. F. [2001] IESC 2; [2001] 1 IR 599; [2001] 2 ILRM 326 (17th January, 2001)

THE SUPREME COURT

174/00

Denham, J.

Murray, J.

Geoghegan, J.

BETWEEN

McG

PETITIONER/APPELLANT

AND

F (OTHERWISE McG)

RESPONDENT

Judgment of The Hon. Mrs. Justice Denham delivered on the 17th day of January, 2001 (nem. diss.)

1. Appeal

1. At issue on this appeal is the extent of the role of the medical inspector in a nullity suit. This is an appeal by the Petitioner/Appellant McG, hereinafter referred to as the Petitioner, from a judgment of the High Court (Budd J.) delivered on 28th January, 2000.

Facts

2. The Petitioner presented a petition to the Central Office on 31st January, 1997 seeking a decree that the marriage celebrated between the Petitioner and Respondent is null and void. It [*2] was petitioned that the purported marriage between the parties is null, void and of no legal effect by reason of the fact that the Petitioner and Respondent lacked the capacity to enter into and/or sustain a normal lifelong marital relationship with each other as a result of their respective states of mind, mental conditions, emotional and psychological development at the date of the said marriage. The Respondent denied the allegations and in the formal Answer stated that the proceedings amount to an abuse of the processes of the Court by the Petitioner and involve his seeking to evade proceedings for judicial separation. The said separation proceedings, which had commenced in 1996, were adjourned subsequent to the extraction of the citation for nullity of the marriage. By Notice of Motion the Petitioner sought an order appointing medical inspectors to examine the parties pursuant to the Rules of the Superior Courts.

3. The Petitioner proposed and the Respondent concurred that Dr. Gerard Byrne, psychiatrist, be appointed medial inspector. The order of the Master of 14th May, 1997 stated:

“By Consent IT IS ORDERED that this Action shall be set down for trial before a Judge without a jury and be entered in the lists of trial with a lodgment of the proper documents in the Central Office and that the issues to be tried be:

1. Whether the Petitioner lacked the capacity to enter into and/or sustain a normal lifelong marital relationship with the Respondent by reason of his state of mind mental condition or emotional and psychological development at the date of the ceremony of marriage or by reason of her state of mind mental condition or emotional and psychological development at the date of the ceremony of marriage.

2. Whether the Respondent lacked the capacity to enter into and/or sustain a normal lifelong marital relationship with the Petitioner by reason of her state of mind mental condition or emotional and psychological development at the date of the ceremony of marriage or by reason of his state of mind mental condition or emotional and psychological development at the date of the ceremony of marriage.[*3]

3. Whether the Petitioner gave a full free and informed consent to the said marriage.

4. Such other issues as to the Court shall seem fit.

And IT IS ORDERED that Dr. Gerard Byrne Psychiatrist be and he is hereby appointed to carry out a psychiatric rather than a physical examination of the Petitioner and also 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.

And IT IS ORDERED that the said reports by the said Dr. Gerard Byrne be transmitted by him by registered post in a sealed envelope addressed to the Master of the High Court Four Courts Dublin 7.

And IT IS ORDERED that the said Petitioner and the Respondent and their respective Solicitors and Psychiatrist appointed as aforesaid do attend the aforementioned times and places in order that the said Petitioner and Respondent may then and there be identified as the parties in this cause to be examined as aforesaid.

And IT IS ORDERED that the Petitioner do pay the proper fees of said Medical Inspector and said Psychiatrist without prejudice as to the question of the ultimate liability in respect thereof.”

4. The Petitioner and Respondent each attended with Dr. Byrne twice and separately. It transpired that during one of the interviews between the Petitioner and Dr. Byrne the Petitioner requested that Dr. Byrne speak to five persons outside the parties, four who were friends of the Petitioner and the fifth being the Petitioner’s brother. The Petitioner by Notice of Motion dated 11th March 1998 sought directions of the High Court, in regard to the medical inspector appointed, including:

“2. If necessary, in particular, an Order granting liberty to the medical inspector to interview persons other than the parties hereto in order to assist him with his report to this Honourable Court;

3. Further, an Order granting liberty to the Petitioner to disclose to the medical inspector diaries of the Respondent relevant to the matters at issue between the parties;”[*4]

5. The Respondent objected strongly to non-parties being interviewed. Further, she alleged that her diary had been stolen by the Petitioner and should not be given to the medical inspector.

6. The matter came before Kinlen J. on 24th April, 1998. However, no order was made. During the summer of 1998 there was correspondence. Dr. Byrne indicated that he intended to interview persons other than the parties. Dr. Byrne stated that interviews with informants were a standard practice in carrying out a psychiatric assessment when a personality disorder was suspected. He stated that it was for this reason that he wished to interview the other persons. In February 1999 it was apparent that Dr. Byrne was intending to proceed with the interviews of the persons other than the parties. The Respondent issued a Motion, dated 19th February 1999, seeking directions in regard to the medical inspector appointed and

“An Order directing the medical inspector to carry out his duties within the remit of the Order of the Master of the High Court dated 14th day of May 1997 and to deliver to this Honourable Court a report based on his findings subsequent to his having interviewed the parties to this action, forthwith.”

3. High Court

7. The issues relating to the ambit of the medical inspector’s inquiry and the diary of the Respondent came before Budd J . Written submissions were ordered. The matter was heard on 23rd July and on 16th, 17th, 18th and 24th November, 1999. Judgment was delivered on 28th January, 2000. In a judgment setting out a thorough analysis of the law of nullity and the place of medical inspectors therein Budd J. held:

“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

[*5] Master and should interview the parties and report without moving into the contentious areas of interviewing third-party informants This restricted inspection on the part of the psychiatrist ensures that the Court remains in control of the inquiry.”

4. Against the judgment and order of the High Court the Petitioner has appealed on the grounds that:

“1) The Learned Trial Judge erred at law and in fact in attaching insufficient weight or consideration to the evidence of the medical inspector appointed herein as to the accepted psychiatric practice relevant to the issues in the proceedings herein.

2) The Learned Trial Judge erred at law in determining the correct interpretation of the applicable statutory provisions and rules, and in particular in interpreting the said statutory provisions and rules as envisaging only inspection or examination of the parties herein to the exclusion of third party informants.

3) The Learned Trial Judge erred at law in holding that the principles of the law as to hearsay apply in this instance.

4) The Learned Trial Judge erred at law and in fact in categorising the information available from third party informants to the medical inspector as evidence and further erred at law in determining the issues on foot of this categorisation.

5) The Learned Trial Judge erred at law and in fact in determining that the Petitioner/Appellant obtained the diary of the Respondent consequent on a brazen and outrageous intrusion by the Petitioner/Appellant into the Respondent’s affairs.

6) Further, there was no or no credible or sufficient evidence on foot of which the Learned Trial Judge could reasonably have concluded that the obtaining of the diary of the Respondent by the Petitioner/Appellant amounted to a brazen and outrageous intrusion into the privacy of the Respondent

7) The Learned Trial Judge erred at law and in fact in awarding the Respondent herein the costs of the Motion and hearing

before the High Court.

8) Such further and other grounds as to this Honourable Court may deem appropriate.” [*6]

5. Submissions on behalf of the Petitioner

8. Ms. Inge Clissman, S.C., counsel for the Petitioner, submitted that this was a nullity petition and that it was within the Court’s, or Master’s, power to order a medical inspection. In order to make the medical inspection as comprehensible as possible it was submitted that the medical inspector is entitled to interview witnesses of the wedding and surrounding circumstances. In order for his inspection to be as transparent as possible the interviews should be recorded and possibly transcribed for the benefit of the Court and the parties affected. In order that the Court should not have to take into account hearsay evidence the Petitioner proposed that he could call the witnesses interviewed by the medical inspector to give their evidence on oath. If the Respondent did not object it was suggested that the Court might decide to dispense with evidence from witnesses which would duplicate the evidence given by the medical inspector having regard to the procedures of the former ecclesiastical courts and to some recent cases relating to minors where hearsay was admitted.

9. It was submitted that if the evidence before the Court showed that the basis upon which an expert opinion was given was mistaken the judge could discount it or place little weight on the evidence of the expert. Counsel pointed out that if the doctor gives evidence of information given to him that is undermined at the trial then the report which had been prepared by the doctor may not stand up to scrutiny. It was submitted that such a process allowed the Court to weigh up and consider what regard should be had to the report. Counsel drew an analogy with cases where there is a welfare assessment by a doctor of children and relied upon the similarities of a wardship case: In Re Wards of Court: Eastern Health Board v. MK and MK [1999] 2 IR 99. It was submitted that both wardship proceedings and nullity proceedings are inquisitorial. [*7]

10. Counsel submitted that the diary of the Respondent should be made available to the medical inspector.

6. Submissions on behalf of the Respondent

11. Mr. Hegarty, S.C., counsel for the Respondent, submitted that the decision of the High Court was correct. He submitted that the medical inspector should not interview persons other than the parties. He distinguished this case from that of wardship saying there were major pecuniary interests at issue in this case and he did not accept that nullity proceedings are inquisitorial. He submitted that the proceedings of judicial separation had been pre-empted by this nullity suit, that should the Petitioner succeed it would deprive the spouse of ancillary reliefs. He submitted that the grounds for nullity based on personality disorder had developed relatively recently and he suggested that the Court should tread warily in this area. Counsel pointed out that if persons other than the parties were to be interviewed by the medical inspector for his report that it would be up to the Respondent to challenge the matters. Counsel argued that the application was in fact a request to shift the role of the judge to the medical inspector.

12. As to the diary, counsel submitted that it was a matter which could be addressed by way of discovery later. He argued that issues such as any alleged previous unlawful taking or tainting issue could be addressed at that stage. [*8]

7. Decision

13. This case relates to nullity proceedings only. It concerns the powers of a medical inspector appointed by the Court to carry out a psychiatric examination of the parties. The query raised is whether the medical inspector has power to interview persons other than the parties for the purpose of his report to the Court. Thus at issue is the ambit of the medical inspector’s report.

14. The law of nullity in Ireland while grounded in the Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870 has been the subject of much case law. Originally impotence was the ground upon which a marriage was voidable. In the traditional aspect of this law relating to nullity of marriage the examination by the medical inspector was physical rather than psychiatric.

15. As a result of case law during the 1980s it was held that if a party lacked the capacity to enter into and maintain or sustain a normal marriage relationship at the date of the marriage this could render a marriage voidable. In UF(orse C) v JC 2 JR 330 Finlay, C.J. endorsed the approach of previous High Court decisions holding that the incapacity of one of the parties to form or maintain a normal marital relationship with the other party is a valid ground for nullity. At issue in such cases is the capacity of a party. This involves consideration of matters of the mind. It is this law which the Petitioner has called in aid of his petition. In this case the parties have consented to psychiatric examination of the parties by an agreed doctor. It is the interviewing of the other persons that is in issue.

16. Nullity proceedings give rise to an action to determine an issue or issues. There are parties to the action. It is an adversarial proceeding. It is not similar to matters of wardship which are [*9] heard by the President of the High Court when conducting the jurisdiction previously exercised by the Lord Chancellor. Consequently, case law relating to wardship of children is of no relevance or assistance.

17. The medical inspector was asked by the Court to carry out an examination of the parties and report to the Court. The medical inspector is an expert asked to examine the parties and give an expert opinion. What is now sought is for the role of the medical inspector to be extended to enable him or her interview persons other than the parties. Counsel indicated that such persons could subsequently be called at the trial and if they were not so called then the Judge could determine the appropriate weight to be given to the medical inspector’s report. Such a vista raises many problems. First, the medical inspector would in fact be conducting a preliminary hearing of persons other than the parties. Secondly, the fact that such persons would then be called to give evidence in court would mean that there would be many additional matters to address in court, for example, what such persons had said to the medical inspector, how it stands up on cross examination, what was omitted, etc. All of this is quite apart from any consideration of rules of evidence, including the hearsay rule. Further, the weight to be given to such a report, if the additional interviewees of the medical inspector were not called to give evidence in court, or gave evidence contrary to the information they had given to the medical inspector, would be seriously undermined.

18. The learned High Court Judge held that to allow third parties to be interviewed by the medical inspector would be to stretch the law too far. I agree with that decision and the reasons given by him and I would affirm the judgment and order of the High Court. While the medical inspector has indicated that it is common practice in achieving a medical [*10]diagnosis, this is a report for the Court prior to a court hearing. To enable the medical inspector interview persons other than the parties would be to endorse a preliminary hearing by the doctor. Further, it would cause serious difficulties in the running of the nullity action in Court and it would take the action from the Court and place it partially in the hands of the doctor. The medical evidence of the medical inspector is an important aspect of the hearing. However, the determination is a judicial function and the evidence should be tendered in accordance with the law and fair procedures.

19. Whilst the medical inspector was of the view that it was standard psychiatric practice to seek information from third parties and that such was warranted in this case the proceedings are judicial. At issue is the status of the parties. The inspector has been asked to examine the parties only. This is in keeping with the necessity for the nullity suit to be conducted in a court of law and not a doctor’s clinic. Consequently in this case the medical inspector has the authority as stated on the face of the Court Order to interview the parties and no other persons. Nothing in this judgment is intended to inhibit a court, if deemed appropriate, from giving additional authority to the medical inspector on consent of both parties.

20. As to the diary, it appears that this is now in the care and control of the Respondent. If it is to be a matter of evidence in the nullity suit then the appropriate process lies elsewhere. It may be a matter for discovery.

8. Conclusion

21. I would dismiss the appeal and affirm the judgment and order of the High Court for the

reasons stated.