L.B. v Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 15 January 2015
• Neutral Citation: [2015] IESC 1
• Court: Supreme Court
• Docket Number: [Appeal Nos: 34/2013 & 76/2013]
• Date: 15 January 2015

[2015] IESC 1

THE SUPREME COURT

Clarke J., Laffoy J., Charleton J.

[Appeal Nos: 34/2013 & 76/2013]

Between/

L. B.

Plaintiff/Appellant

and

Ireland, The Attorney General and P. B.

Defendants/Respondents

Constitutional Law - Family Law (Divorce) Act 1996 – Property Transfer

Facts: The question raised in this appeal was whether a person required to transfer property to a spouse, as a result of orders made in matrimonial proceedings for divorce, could sue the State on the basis of an uncompensated appropriation of property. The orders were made pursuant to the Family Law (Divorce) Act 1996. The plaintiff/appellant challenged the constitutionality of part of the 1996 Act including the provisions permitting such orders. The High Court held that the claim was bound to fail and allowed the motion brought by the first named defendants/respondents (“the State”) to dismiss. The plaintiff/appellant appealed against this finding.

Ruling: The Constitution allowed courts to interfere with spousal property rights in the context of divorce to ensure proper provision is made for the other spouse. There was no basis to suggest that the Constitution places the burden of making such provision on the State. The court said the claim that the State was obliged to compensate spouses who were constitutionally required to make such proper provision failed. Furthermore, the court said it was inappropriate to allow the plaintiff/appellant to revisit the same constitutional issues so recently decided in proceedings he was party to. The court therefore dismissed the appeal and affirmed the order of the trial judge.

Mr. Justice Clarke

Judgment of Mr. Justice Clarke delivered on the 15th day of January, 2015

1 1. Introduction

1.1 This appeal raises one straightforward question. Is it arguable that a person who is required to transfer property to a spouse, as a result of orders made in matrimonial proceedings for divorce, is entitled to sue the State on the basis of an uncompensated appropriation of property? The High Court held that such a claim was bound to fail and, on that basis, allowed a motion brought by the first and second named defendants/respondents ("the State") to dismiss. The plaintiff/appellant ("Mr. B") has appealed to this Court against that finding.

1.2 While it will be necessary to set out the lengthy history of the relevant proceedings involving Mr. B in a little more detail in due course, it is sufficient for present purposes to note that Mr. B was initially involved in matrimonial proceedings, also involving the third named defendant/respondent ("Ms. B"), as a result of which adjustment or transfer orders were made in relation to certain lands and pension rights. There can be no doubt but that the effect of those court orders has been to deprive Mr. B of property rights which he would otherwise have had in the relevant lands and pension. Those orders were made in the context of matrimonial proceedings which were the subject of hearings both in the Circuit Court and, on appeal, in the High Court. The orders were made within the jurisdiction of those courts as conferred by the Family Law (Divorce) Act, 1996 ("the 1996 Act").

1.3 Thereafter, Mr. B brought proceedings in which he challenged the constitutionality of part of the 1996 Act including the provisions which permitted such orders to be made. Those proceedings were determined in the High Court by MacMenamin J. in L.B. v. Ireland and the Attorney General and by order P.B. [2008] 1 I.R. 134. That decision was affirmed on appeal by this Court in July, 2009.

1.4 Thus, the legislation under which the relevant property and pension adjustment orders were made has been held to be consistent with the Constitution and the specific orders made in Mr. B's case must, therefore, be taken to have been validly made in accordance with constitutionally valid legislative provisions.

1.5 It is against that backdrop that the State brought its application before the High Court asserting that Mr. B's claim in these proceedings was bound to fail. In substance the State argued that this was, under the guise of a claim in damages against the State, an attempt to relitigate the issues which had already been determined in the previous constitutional proceedings. Hogan J. concluded, at paras. 20 and 21 of his judgment, that Mr. B's claim was bound to fail and thus should be struck out under the court's inherent jurisdiction and further held that the proceedings amounted to an attempt to relitigate matters already determined and, thus, if it were necessary to do so, that the proceedings could also be struck out on the basis of res judicata.

1.6 Finally, it should be noted that the trial judge made no order for costs against Mr. B notwithstanding dismissing his claim. The State has filed a notice of cross appeal against that refusal of the trial judge to award costs in their favour. The cross appeal has been left over until the substantive issue raised on this appeal has been determined.

1.7 In order to place Mr. B's appeal against the substantive ruling in context, it is necessary to say a little more about the various proceedings in which Mr. B has been involved.

2 The History of Proceedings

2.1 Mr. B was married in 1964. He is now retired. There are a number of adult children of that marriage who are not financially dependent on their parents. In June, 1996 Ms. B commenced judicial separation proceedings against Mr. B under the Judicial Separation and Family Law Reform Act 1989. Judgments of the Circuit Court and the High Court on appeal (Kinlen J.) were given which, amongst other things, directed the sale of the family home with each side to receive 50% of the proceeds.

2.2 Later Mr. B brought proceedings in the Circuit Court seeking a decree of divorce and other ancillary reliefs. The Circuit Court, amongst other things, ordered that the family home be sold with 35% of the net proceeds to go to Mr. B and the balance to Ms. B. In addition a pension adjustment order in respect of 20% of Mr. B's pension was made in favour of Ms. B. For reasons which were not clear to the High Court judge and are not clear to me, the original judicial separation proceedings order relating to the sale of the family home and a 50/50 division, was never implemented.

2.3 The divorce proceedings were appealed to the High Court and determined on appeal by Finlay Geoghegan J. on the 10th June, 2004. The High Court upheld the decision of the Circuit Court in substance but made some changes to the precise details of the relevant property and pension adjustment orders. The property was directed to be divided as to 40% to Mr. B and the pension adjustment order in favour of Ms. B was changed to 25%. Ultimately, the detail of those orders is no longer of any relevance to the issues which are before this Court. What is relevant is that Mr. B was subject to orders both in respect of his lands and his pension which had the effect of transferring a part of his property interest in both of those items to his wife.

2.4 Mr. B asserts in these proceedings that his estranged wife had no direct property interest in either of those items on the basis that he had provided all of the funds which were used to acquire them. As this appeal arises out of an application to dismiss as being bound to fail, it follows that the court must, of course, accept that Mr. B will be able to establish that fact at trial. For the purposes of the argument on this appeal, therefore, I must assume that the relevant assets were the sole property of Mr. B and that he was required, on foot of the property and pension adjustment orders to which reference has already been made, to transfer the relevant portions of those assets to Ms. B. He is, of course, at a loss as a result of having so to do.

2.5 The real issue which arises is, however, as to whether there is any basis on which it is arguable that he can claim for that loss against the State. Before turning to that issue, I should briefly note two matters which occurred at the hearing of the appeal before this Court.

2.6 First, Mr. B (who appeared in person) submitted that the appeal should be heard before a Court consisting of five judges on the basis that he wished the court to review a previous decision made by this Court in T.F. v. Ireland [1995] 1 I.R. 321. In that context, Counsel for the State drew attention to the fact that Mr. B had the opportunity, when arguing for the unconstitutionality of the 1996 Act, in his own proceedings in L.B. v. Ireland & Ors., to invite this Court to revisit any aspects of its previous decision in T.F. v. Ireland which he considered warranted review. Counsel noted, and Mr. B accepted, that no such attempt had been made. In those circumstances, Counsel for the State argued, and the court agreed, that any question of revisiting T.F. v. Ireland had now been overtaken by events being the failed challenge by Mr. B to the constitutionality of the 1996 Act in L.B. v. Ireland and the judgment of both the High Court and this Court in those proceedings. The Court, therefore, ruled that it was unnecessary to reconstitute the formation of the court as a five-judge panel.

2.7 Finally, it should be noted that, at the commencement of the hearing, Counsel appeared on behalf of Ms. B to indicate to the court that Ms. B did not require to participate in the hearing. It is then necessary to return to a discussion of the arguability of the claim made by Mr. B in these proceedings.

3 Discussion

3.1 Much of the submissions put before this Court by Mr. B, both in writing and at the oral hearing, were concerned with establishing that his property rights had been interfered with. First, he asserted, correctly so far as it goes, and as has already been noted, that he had a property interest in both...