Domhnall Mac A'Bhaird v Commissioners of Public Works in Ireland

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice David Keane
Judgment Date06 Feb 2015
Neutral Citation[2015] IEHC 129
Docket Number[No. 1182P/2013]

[2015] IEHC 129

THE HIGH COURT

[No. 1182P/2013]
Domhnall Mac A'Bhaird v Commissioners of Public Works in Ireland
No Redaction Needed

BETWEEN

DOMHNALL Mac A'BHAIRD
PLAINTIFF

AND

THE COMMISSIONERS OF PUBLIC WORKS IN IRELAND
DEFENDANTS

Family proceedings – Judicial separation – Property adjustment order – Parties seeking an order for judicial separation – Whether an order for judicial separation should be made

Facts: The applicant wife and the respondent husband were married in 1998. At all material times they were domiciled and had an ordinary place of residence within the jurisdiction. They have four children. A normal marital relationship had not existed between the parties for a period of more than a year prior to the issue of the proceedings before the High Court.

Held by Abbott J that an order for judicial separation should be made. On the basis of the entitlement of the parties to a judicial separation, the Court considered provision in accordance with s. 16(2) of the Family Law Act 1995. The Court considered the command of s. 16(5) that an order shall not be made under a provision furthering s. 16(1) unless it would be in the interest of justice to do so. The Court was satisfied that the provision made satisfied the tests set up in subs s. 16(5).

Abbott J held that the Court should make the following orders: an order for judicial separation pursuant to s. 2(1)(f) of the Judicial Separation Act 1989; property adjustment orders transferring the respondent”s interests in the family home at M to the applicant (and an order that the applicant shall remain entitled to the sole beneficial use and occupation of the property exclusively), transferring the interest of the applicant in CH to the respondent (and an order that the respondent is entitled to the sole use and occupation of the property), and in respect of the lands comprised in the plots reflecting agreed areas in A, B and C as described in the respondent”s valuer”s reports; the property adjustment orders relating to M and plots A, B and C are subject to the reservation of the land necessary for rights of way with the consequential property adjustment order in the case of the site at M from the applicant to the respondent; the respondent make period payments in respect of maintenance of €4,000 per month to the applicant on the basis that the applicant has a separate tax registration and on the basis that same will be paid gross, leaving the respondent with the right to offset the same against his tax bill; a property adjustment order transferring the respondent”s interest in the German investment to the applicant, with a clawback payment of 25% to respondent when it matures in 2018; an order that the maintenance order by the Court shall not be reviewed downwards by reason only of the applicant obtaining employment, unless the gross income of the applicant exceeds €30,000.00 per annum on the basis that the maintenance order ordered by the Court will not be sufficient without supplementation to cover the current needs of the applicant and children; an order that the B lands be sold for the purpose of discharging revenue debt with the respondent entitled to retain the balance of net proceeds, with the solicitors for the parties having carriage of sale and in the event of the said lands not being sold within six months by reason of the failure or neglect of the respondent, the Court adjourns the consideration of a property adjustment order in favour of the applicant to facilitate such sale on the same terms; a financial adjustment order to be made in respect of investment linked insurance policy in favour of the applicant, with a clawback payment to the respondent when it matures in 2018; an order charging all land remaining in ownership of the respondent with maintenance obligations until finalisation of property adjustments orders to the applicant; liberty to applicant to use insurance policy as security for borrowings of up to €100,000.00 to tide her over shortfall of maintenance, and costs of land sale/development pending realisation of sale prices for same; and the respondent to continue paying VHI. Abbott J did not propose to make any order for costs on a party/party basis. He adjourned further consideration of the proceedings pending submissions of counsel in relation to the form of order implementing the foregoing judgment, and in relation to such further ancillary orders as may be necessary to implement same securely in the interests of the parties and their children.

Judgment approved.

Mr. Justice David Keane
1

This is a challenge to an assertion of legal professional privilege over certain documents discovered in the course of the above-entitled action.

2

The plaintiff, as vendor, seeks specific performance of an agreement for the sale of certain commercial or industrial premises in Glanmire, County Cork to the defendants, as purchasers, which agreement was made on or about the 4th November 2011. The defendants admit the agreement for sale and it is common case that a completion notice issued dated the 23rd November 2012, which was originally due to expire on the 2nd January 2013 but which was extended by agreement between the parties to the 4th January 2013. The defendants contend that the plaintiff failed to complete the sale within the period covered by the said completion notice, as extended, such that the defendants were entitled to elect to rescind the sale, which election was communicated to the plaintiff's solicitors by letter dated the 9th January 2013. The defendants counterclaim for the return of their deposit.

3

A plenary summons issued on the 5th February 2013. A memorandum of appearance was entered on behalf of the defendants on the 13th February 2013. A statement of claim was delivered on the 30th April 2013. After particulars were raised and replies received, a defence and counterclaim was delivered on the 18th November 2013, following which a reply to defence and counterclaim was delivered on the 18th November 2013.

4

Although it was not produced in court, I am told that Gilligan J. made an Order for discovery on the 17th July 2014, in response to which Mr Gerard Gleeson swore an affidavit of discovery on behalf of the defendants on the 27th August 2014.

5

In that affidavit, the defendants claim privilege over a number of documents set forth in the Second Part of the First Schedule to that affidavit. The grounds advanced in support of that assertion of privilege in the body of Mr Gleeson's affidavit are:

"The said documents are privileged because they contain or consist of requests for legal advice by or on behalf of the [defendants] herein and/or contain the provision of legal advice by their legal representative, and/or that the said documents contain or consist of requests for legal advice by or on behalf of [the State] and/or contain the provision of legal advice by [the State's] legal representatives in general and further in connection with anticipated litigation between the plaintiff and [the defendants] herein. In further of the above the said advices relate to legal advices and/or correspondence to and from counsel in connection with such advices and/or notes of meetings and/or memoranda discussing or recording or noting said advices and/or include or incorporate documents relevant to [the] seeking or giving of such advices, all of which are privileged on grounds of...

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