D.O.R v B.O.R
| Jurisdiction | Ireland |
| Judge | Ms. Justice Bronagh O'Hanlon |
| Judgment Date | 28 June 2017 |
| Neutral Citation | [2017] IEHC 429 |
| Docket Number | [2015 No. 63 M.] |
| Court | High Court |
| Date | 28 June 2017 |
[2017] IEHC 429
THE HIGH COURT
O'Hanlon J.
[2015 No. 63 M.]
IN THE MATTER OF THE JUDICIAL SEPARATION
AND FAMILY LAW REFORM ACT, 1989
AND
IN THE MATTER OF THE FAMILY LAW ACT 1995
Family – Family Law Reform Act, 1998 – Family Law Act 1995 – Judicial Separation – S.40 (8) of the Civil Liability and Courts Act, 2004 – Disclosure of information
Facts: The respondent had filed a motion under s. 40 (8) of the Civil Liability and Courts Act 2004 for granting liberty to the respondent to disclose settlement terms reached between the parties in divorce proceedings to his legal advisors. The respondent argued that he needed that information in order to obtain comprehensive legal advice for well equity proceedings.
Ms. Justice Bronagh O'Hanlon refused to grant the desired relief to the respondent. The Court held that under s. 40 (8) of the 2004 Act, the Court was vested with discretion to order disclosure of documents arising in the course of proceedings to third parties if such disclosure was required to protect the legitimate interest of a party affected by the proceedings. The Court noted that the respondent was not a party to the well equity proceedings. The Court found that the respondent himself inserted the confidentiality clause in the settlement agreement in the divorce proceedings and the respondent would not be permitted to lift the in camera rule in the guise of obtaining legal advice. The Court observed that the respondent had already obtained the legal advice and instructed a separate legal team in relation to the equity proceedings and thus, the respondent did not suffer any prejudice.
The respondent has issued a notice of motion seeking relief pursuant to s. 40 (8) of the Civil Liability and Courts Act, 2004 granting liberty to the respondent to disclose settlement terms reached between the parties on 26th day of January 2017 or such appropriate parts thereof to his legal advisors in proceedings being brought by the respondent entitled B.O.R. v. D.O.R., D.O.R., P.O.R and Ulster Bank Limited DAC record no. 2016/1045 1P.
Following case management concerning three sets of proceedings including divorce proceedings brought by D.O.R. against B.O.R under record no. 2015/63M, as well equity proceedings under record no. 2016/1045 1P presently at hearing before this court and adjourned for further hearing to October 2017 and a third set of proceedings involving Ulster Bank Limited v. B.O.R. & Ano. The direction of this court was the three sets of proceedings were to be dealt with in three separate modules.
The divorce proceedings settled after a number of days at hearing subject to ruling by this court on 5th April 2017 when the matter was ruled.
The respondent in the divorce proceedings and moving party in relation to the motion herein specifically sought, to the settlement, the inclusion of paras. 7 and 8 in the terms of settlement (hereinafter referred to as ‘the relevant terms’). These terms are:
Para. 6: ‘the parties agree that the settlement herein is in full and final settlement of all claims between them pursuant to Family Law (Divorce) Act, 1996 and any statutory amendments, the Constitution and other related statutes, save that in the event that the respondent obtains relief, net of costs, in either of the two sets of proceedings relating to F.H., N in the County of K, the said proceedings bearing record nos. 2015/228CA and 2012/N09106P, the applicant herein reserves her right to bring a claim against the respondent in respect of such a relief, net of costs, out of the said two sets of proceedings’.
Para. 7: ‘the applicant covenants that she has procured from the trustees of the D.O.R. discretionary trust (DORDT) the agreement that they and she will not take any action to interfere with the respondents, his servants or agents in his sole occupation of the premises at F.H., Co. K, pending the determination of the two sets of proceedings referred to at para. 6 above.’
Para 8: ‘the Parties agree that the terms set out at paras. 6 and 7 above are expressly subject to a confidentiality clause over and above the principles provided in the in camera rule, to the extent that the said terms of the said paras. shall not be referred to or be made known at any stage of the two sets of proceedings relating to F.H. in the county of K as referred to above.
This court notes that the applicant in the aforesaid divorce proceedings and respondent to this notice of motion, is no longer a defendant in the equity proceedings under record no. 2016/1045 1P. It is also noted that an application to link the within proceedings with the proceedings entitled Ulster Bank and B.O.R. and Mountview Construction UK Limited record no. 2012/9106P was rejected by the Court of Appeal.
As appears from the pleadings, a number of exhibits were included in the affidavit of the respondent and moving party in this notice of motion which were served by the respondent on the applicant's solicitor under cover of letter of 30th March 2017. Reference is made to exhibit ‘BOR1’ being a letter from Giles J. Kennedy & Company Solicitors, of the 31st January 2017, served on the applicant's solicitors at that time. This, it is pointed out, was the first occasion on which the applicant or her representatives had any knowledge or notice of the said letter. It is submitted that the contents of this letter are of pivotal importance in disclosing the true intent of this application and in this regard reference is made to the second para. thereof:
‘however our client now advises us that there are two additional clauses in the agreement which specifically refer to the equity and bank proceedings. As we are the solicitors for B.O.R. in respect of these proceedings it is in our view appropriate and indeed necessary for us to be aware of the terms of those clauses. While we accepted that the agreement itself is subject to the in camera rule we can see no reason as to why a redacted copy of the agreement cannot be provided. In fact we understand from the discussions with our client that there maybe a contractual bar to O'Hanlon J. proceeding to hearing the equity proceedings and again it would be very important that we are aware of the contents of this clause.’
The respondent further indicated under cover of letter of 3rd April 2017 that; ‘unfortunately the incorrect correspondence was exhibited for our clients' affidavit sworn on the 24th March 2017 and we now enclose herewith for your attention the correct exhibit BOR 1 and BOR 3’.
It is pointed out on behalf of the applicant that the letter of 31st January 2017 is an open letter and it was indicated to the court on 12th May 2017 (albeit incorrectly) that the applicant had knowledge of it prior to the said letter being included in the affidavit as originally served. The exhibits are unchanged save for exhibit ‘BOR 1’ which is now a letter from Giles J. Kennedy & Company, Solicitors, of the 15th March 2017. It is submitted that the para. of this letter which states: ‘G J K & Co. and Counsel must know what material terms in the settlement agreement affect BOR's case without BOR infringing the in camera rule’. It is submitted on behalf of the applicant therefore that the letter has exhibit ‘BOR 2’ is also of significance and in particular the third and fifth paras. thereof.
Counsel on behalf of the moving party in this notice of motion (the respondent in the divorce proceedings) points out that the test which should be applied should be that the moving party be entitled to have his solicitors consider the non personal parts of the agreement so that full and proper advice can be obtained by her client and that the advice would be limited and that it could otherwise prejudice him.
By open letter dated 23rd May 2017 addressed to Gore & Grimes Solicitors, acting on behalf of D.O.R, and it is noted that this matter concerns the family law matter from Hanlon & Co. who represent the respondent to the action and moving party B.O.R. in relation to this notice of motion, gives notice that in relation to the said motion before this court on 24th May 2017 pursuant to ‘such further or other relief as this honourable court shall seem proper’ as provided for therein, they state an intention to rely on the common law if necessary, in addition to s. 40 (8) (of the Civil Liability and Courts Act 2004 and to please note that ‘such further or other relief’ should include the common law).
Essentially what is sought is an order allowing the moving party to discuss para. 6, 7 and 8 of the settlement agreement with the separate solicitors he has instructed in the equity and banking suits. It is argued that such an order would not impact the family, child or the family matter (except insofar as this would enable him to inform his solicitors that his wife maybe entitled to bring a claim against him in the event that damages are awarded).
The moving party argues that any potential liability to the applicant wife is a valid issue upon which he requires legal advice, in relation to para. 6 of the terms of settlement.
In relation to para. 7, this sets out the moving party's entitlement to sole occupation of the property pending the determination of the equity and banking suits. While acknowledging that this does not necessarily advance his case, the moving party asserts that this is information which he should be able to discuss with his solicitors. The moving party further argues that the existence of a confidentiality clause (as per para. 8) is something that he should be entitled to discuss with his solicitors.
Counsel on behalf of the moving party makes a distinction between confidentiality and the...
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