H. v H

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Henry Abbott
Judgment Date23 January 2015
Neutral Citation[2015] IEHC 58
Date23 January 2015

[2015] IEHC 58

THE HIGH COURT

[No. 27 M/2012]
H v H
FAMILY LAW
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

Judicial Separation – Practice and Procedures – Objection – Forensic Accountant – Matrimonial Issues – Assets – Disclosure – Family Law Litigation – Litigation Misconduct

Facts: In this case the applicant sought judicial separation from the respondent. Proceedings had reached the stage where the respondent had delivered an affidavit of means, which the applicant alleged did not disclose the full extent of the assets of the respondent. 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 had refused to comply with an order of the Court, and/or on the grounds that the respondent was in breach of the duty to make full financial disclosure in the within proceedings, and that the respondent had been guilty of a litigation misconduct. The combination of applications had the effect of creating a case management session. 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 were alleged by the respondent to have been taken illegally by the applicant, and for an order for its return to the respondent. 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.

Held by Justice Abbott in light of the available evidence and submissions presented that he would disallow the objection. It was determined that the obligation to disclose on the on the part of the respondent in this case was far more advanced than its equivalent in Imerman. Secondly, it was reasoned that whilst he 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, Justice Abbott determined that in light of P. v. Q. [2012] IEHC 593, it was vital that there be a balancing exercise in the context of family law litigation. Thus, the Court directed that the applicant should be given back the originals of the documents to the respondent and that the respondent should then disclose the documents and hand them back to the applicant. It was further determined that the applicant should be entitled to keep a copy of all documents handed back by her and that the offending electronic devices concerned 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.

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JUDGMENT of Mr. Justice Henry Abbott delivered on the 23rd day of January, 2015

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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 18 th 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 25 th 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.

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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.

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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:-

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(a) Ms. Clissmann S.C., referred to the fact that the applicant, having first issued denials in relation to the documentation, admitted in an affidavit that she had taken possession of certain documentation, and had removed other documentation from the respondent's computer using an electronic device (USB stick), and that such action constituted criminal and tortuous activity and possibly a breach of the respondent's constitutional rights to privacy. She submitted that by reason of the judgments of McMahon J. in O.C. v. T.C. (Unreported, High Court, McMahon J., 9 th December, 1981), and the judgment of Budd J. in P.McG. v. A.F. (Unreported, High Court, Budd J., 28 th January 2000), the evidence thus illegally obtained, could not be admitted in evidence. She also drew the attention of the court to the judgment of the Court of Appeal in the jurisdiction of England and Wales in Imerman v. Imerman [2010] EWCA Civ. 908, in which the judgment of the Master of the Rolls (as he then was) held that the hitherto operational Hildebrand rules were never good law, save and except in relation to a minor aspect. She further drew the attention of the court to the judgment of Mostyn J. in U.L. v. B.K. [2013] EWHC 1735 (Fam), in which, at para. 56, the learned judge set out in subparas. (i) - (vi) what may be regarded as the " Imerman rules" to replace the " Hildebrand rules". The effect of such change was to effectively remove the opportunity that the Courts of England and Wales had to balance the effect of the wrongdoing of a dubious removal of documentation with the need for disclosure in family law proceedings. Counsel for the applicant urged this Court to follow the Imerman principles to prohibit counsel for the applicant from proceeding any further with the opening of the relevant paragraphs in his accountant's affidavit, by reason of the inadmissibility of their contents, being the documents dubiously obtained or references thereto.

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(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...

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