A. v A

CourtSupreme Court
JudgeMs. Justice Laffoy,Mr Justice Charleton
Judgment Date09 November 2015
Neutral Citation[2015] IESC 102
Docket Number[S.C. Nos. 328, 373 & 485 of 2009],Record number 1997/58M Appeal Nos: 328, 373 & 485/09
Date09 November 2015

[2015] IESC 102

An Chuirt Uachtarach


Charleton J.

Laffoy J.

Record number 1997/58M

Appeal Nos: 328, 373 & 485/09

Denham C.J.

Laffoy J.

Charleton J.



Divorce Proceedings – Ancillary Relief – Family Law (Divorce) Act 1996 – Bankruptcy – Foreign Law Jurisdiction – Locus Standi – Personal Rights – Property Rights

Facts: This case considered whether B.A. had locus standi to bring an application in relation to matrimonial proceedings. In 2001 the High Court granted a decree of divorce in respect of B.A.’s marriage to A.A. As part of the settlement the court ordered the transfer of two properties to A.A. and for the payment of a lump sum by B.A. to A.A. in two instalments. In 2006 A.A. filed a notice of motion to have the 2001 court orders set aside and for further orders to be made pursuant to the Family Law (Divorce) Act 1996. A.A. alleged that B.A. had i) failed to make a frank and complete disclosure of his assets, ii) provided false and incomplete information as to the value of those assets and iii) misled the court as to the extent of his beneficial ownership of the assets.

In 2008 C.D., the current wife of B.A., was joined as a notice party to A.A.’s 2006 Application. C.D. brought a motion in the High Court to have A.A.’s 2006 Application dismissed on the basis that the High Court did not have jurisdiction to grant any of the reliefs sought by A.A. C.D. argued that an application to set aside a final High Court order could only be pursued by way of appeal. A.A.’s 2006 Application was heard in December 2008 and in 2009 the High Court made an order to set aside the 2001 ancillary orders and leave the decree of divorce in situ. The 2009 order (the Main Order) set out B.A.’s obligation to pay A.A. an additional tranche of the lump sum. The court made two further orders, the first directing disclosure and discovery of documents by B.A. and the second, prevented B.A. from reducing his assets below the level of the lump sum awarded by the High Court (including the additional tranche).

B.A. appealed to the Supreme Court in relation to the 2009 Main Order and the further two 2009 orders. B.A. challenged the failure of the High Court in 2009 to find that the 2001 Order was final. He asserted that the trial judge erred in finding that the court had jurisdiction to set aside the ancillary relief orders made in 2001 while leaving the decree of divorce in place. C.D. appealed on the basis of the trial judge’s failure to make any order on foot of her motion to dismiss A.A.’s 2006 Application. A.A. also appealed against the 2009 Main order and issued a notice to vary the order of the High Court to increase the additional tranche of the lump sum to be paid by B.A.

The Supreme Court considered all three appeals. In 2014 it made an order affirming the order of the High Court with the exception of an issue in relation to a bond. The additional lump sum awarded in 2009 was made in respect of the non-disclosure of a bond. The Supreme Court remitted the matter back to the High Court to determine whether the bond increased the resources available to B.A. In the interim, the lump sum provision was reduced pending the referral to the High Court. The High Court found that the bond did increase the resources available to B.A. meaning the deduction from the total lump sum payable to A.A. was reversed.

B.A. had been adjudicated a bankrupt in Ireland and was also subject to bankruptcy proceedings in the US. In 2015 B.A. filed a notice of motion seeking an order to set aside the 2014 Supreme Court judgement and the 2009 High Court judgement. B.A.’s 2015 Application went before the Chief Justice and a preliminary issue arose as to whether B.A. had locus standi to bring his Application.

The Official Assignee in the Irish bankruptcy proceedings argued that B.A. did not have standing to seek to set aside the 2009 judgment and the Supreme Court judgment because A.A.’s 2006 Application in the matrimonial proceedings related solely to B.A’s estate. B.A. did not therefore have a personal claim arising out of the decisions of the High Court or Supreme Court. It was submitted that B.A.’s estate had been vested in the Official Assignee since July 2013. For this reason the Official Assignee contended that it was up to him and not B.A. to determine what action should be taken in relation to the property and assets that were the subject of the judgement and orders of the High Court and Supreme Court on A.A.s 2006 Application. Before the hearing of the locus standi issue an affidavit was filed on behalf of B.A. stating that B.A. had filed for bankruptcy in the US prior to being adjudicated a bankrupt in Ireland. It was contended that all of B.A.’s assets vested in the US bankruptcy estate and the Chapter 7 Trustee.

Held by Laffoy J: The court considered whether B.A. had locus standi to prosecute B.A.’s 2015 Application. It held that it was not possible to decide to what extent B.A.’s property and estate was vested in the Official Assignee or the Chapter 7 Trustee. The court was satisfied that the Official Assignee was obligated to collect and preserve B.A.’s assets which gave him sufficient standing to question the standing of B.A. to prosecute B.A.’s 2015 Application. Irrespective of which bankruptcy representative the estate of B.A. was vested in, the court had to determine whether B.A. retained a personal right, as opposed to a property right, that gave him standing to prosecute B.A.’s 2015 Application.

Having been unsuccessful in the Supreme Court, B.A.’s objective in seeking to prosecute his 2015 Application was to have the 2009 High Court judgement and the Supreme Court judgement set aside so that he would be in a position to re-defend A.A.’s 2006 Application. The court determined that B.A. did not have standing to initiate and prosecute B.A.’s 2015 Application as he had not demonstrated that the re-litigation and re-defence of A.A.’s 2006 Application would mean the relief sought would not directly concern his estate. The court found nothing to support the argument that B.A. had a personal interest in continuing to prosecute B.A.’s 2015 Application under Irish law.

The court also determined that it was not in a position to express a view on B.A.’s contention that he had a personal interest in having the 2009 judgment and the Supreme Court judgment set aside having regard to the application of US law. The court held that it could not adjudicate on an issue involving the application of the law of a foreign jurisdiction without expert evidence on the matter. B.A. had failed to provide such evidence.

For these reasons the court dismissed B.A.’s 2015 Application.

Judgment of Mr Justice Charleton delivered on Monday the 9th day of November 2015

This judgment concurs with that of Laffoy J. Only a few observations are apposite as an addition to her reasoning in that judgment. The facts as therein stated are adopted.

Arguments advanced on the appeal

This preliminary issue is one of law. The Official Assignee asserts that the fact ‘that the trial judge or the Supreme Court made findings adverse to the bankrupt, or which reflected on his personal conduct does not of itself give the applicant any basis for making any claim [or] cause [that] claim to become a personal claim.’ The Official Assignee is of the view that ‘there is no basis that is even stateable for overturning the decision of Irvine J in the High Court’ and, further, that even were the decision of the Supreme Court on appeal to ‘be impugned, the launching of a second substantive appeal would be a matter for the Official Assignee.’ Countering this BA, as bankrupt, argues, firstly, that the Official Assignee has no entitlement or standing to seek to prevent or impede any decisions in litigation he might make since the entire of his assets, wheresoever situated, had previously been vested in the United States of America trustee in bankruptcy. Thus, it is contended by BA that the Official Assignee has no interest in any proprietary right of BA since he does not control BA's estate in bankruptcy; the claim being that BA's estate never vested in that Irish official and nor could it due to the prior claims of the US official. Were this argument to be taken to its logical extreme, the entire of BA's bankruptcy estate, being vested in the US trustee, has never, as to any part of it, come under the authority of the Official Assignee. Thus, BA claims, it is irrelevant to, and outside of the jurisdiction of, the Official Assignee as to whether any property of BA is diminished or added to in consequence of any success that BA may have on the course he proposes to take or as a result of any further order being made as to costs against him. Secondly, BA contends that even if the Official Assignee has any interest in any property of his in Ireland or elsewhere that he, BA, retains a personal right to vindicate wrongs done to him. As asserted on this appeal, the wrong consists, it is claimed, of an entitlement to overturn a finding integral to the judgement of Irvine J of 10th June, 2009, that he concealed assets in making discovery of relevant documents to AA in their initial matrimonial proceedings. This amounts to a finding, BA asserts, that his financial conduct and behaviour during the litigation was discreditable. He thus should have had the right, he claims, to participate in those family proceedings through the calling and examination of witnesses and by offering submissions to the court. On behalf of BA...

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