L (T) v L (v)

• Jurisdiction: Ireland
• Judge: CATHERINE McGUINNESS
• Judgment Date: 10 November 1994
• Neutral Citation: 1999 WJSC-CC 4431
• Date: 10 November 1994
• Court: Circuit Court
• Docket Number: Record No. 51/94

1999 WJSC-CC 4431

HIGH COURT

THE CIRCUIT FAMILY COURT

DUBLIN CIRCUIT

COUNTY OF THE CITY OF DUBLIN

Record No. 51/94

L (T) v. L (V)

IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM

ACT, 1989

BETWEEN:

(T) L

APPLICANT:

-and-

(V) L

RESPONDENT.

Citations:

M (S) & M (M) V M (G) 1985 ILRM 186

HERSHMAN & MCFARLANE CHILDREN: LAW & PRACTICE SECTION D PARA 1392 A

BARKING & DAGENHAM LONDON BOROUGH COUNCIL V O & ANOR 1993 4 AER 59

R (A MINOR) (DISCLOSURE OF PRIVILEGED MATERIAL), IN RE 1993 4 AER 702

A (MINORS: DISCLOSURE OF MATERIAL), IN RE 1991 2 FLR 473

E, IN RE 1984 1 AER 289

OXFORDSHIRE CO COUNCIL V M & ANOR 1994 2 AER 269

ESSEX CO COUNCIL V R 1993 2 FLR 826

D H (A MINOR) (CHILD ABUSE), IN RE 1994 1 FLR 679

GUARDIANSHIP OF INFANTS ACT 1964 S3

MURPHY V KIRWAN 1994 1 ILRM 293

ADOPTION ACT 1976 S8

CHILDREN ACT 1989 S1 UK

CHILDREN ACT 1989 S1(1) UK

CHILDREN ACT 1989 S31 UK

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S16(g)

Words & Phrases:

CEF

Subject Headings:

*

CATHERINE McGUINNESS

1 In these proceedings, the Applicant seeks a decree of judicial separation from the Respondent husband, together with a number of ancillary Orders regarding inter alia the custody of the children, periodic and lump sum maintenance and a division of the family property.

2 The parties were married on 11 September 1976 and they have two children born 11 November 1979 and 27 July 1980. The wife is qualified both as a pharmacist and as a barrister-at-law; the husband is a general practitioner in the County Wexford area. The family home is at Dornsland, Ballygarrott, Kilmuckridge, Co. Wexford, and the parties also own an apartment at 19 Hibernia, De Vesci Court, Monkstown, Co. Dublin. The family property also includes two surgery buildings.

3 The wife's proceedings were issued on 11 February 1994 and were listed for hearing before this court on 15 November 1994. On 28 June 1994 an Order and cross-Order for Discovery were made. These Orders were in general terms and were to cover the previous three year period. The Respondent's answer and counterclaim was filed on 20 July 1994. The wife's Affidavit of Discovery was sworn on 21 September 1994 and the husband's on 13 October 1994.

4 On 24 October 1994 and on 7 November 1994 the matter came before this court by way of a Motion brought by the Applicant wife seeking to strike out the Respondent's answer and counterclaim by reason of his failure to comply with the Order for Discovery. This Motion was issued on 5 October 1994 and by the time it was listed for hearing, the Respondent had in fact filed his Affidavit of Discovery. However, Counsel for the Applicant submitted that there were a number of items missing from the Respondent's Discovery including in particular a "blue book" or diary which, it was alleged, contained financial information concerning the Respondent's private medical practice. On 7 November, Counsel informed the court that most of the outstanding items had been dealt with but no discovery of the "blue book" had been made. Counsel for the Respondent submitted that no diary of the type alleged existed. She produced in court pocket diaries for 1993 and 1994. She argued that most of the material in these diaries consisted of notes made at the suggestion of the Respondent's solicitor with a view to instructing the said solicitor and as such were covered by legal professional privilege. Counsel for the Applicant, Mr. Durcan, submitted that such notes in the diary were not specifically documents of instructions to solicitor and counsel and were thus not covered by legal professional privilege. In the alternative, he argued that where documents contained matters relevant to the welfare of children, legal professional privilege should not be applied to them and they should be disclosed. In making this argument, Mr. Durcan relied on a number of English cases referred to in detail below.

5 As a method of procedure, Counsel agreed that I should read the diaries in question with a view to deciding

6 (a) whether the matters contained therein were relevant to the proceedings, and

7 (b) whether any relevant matters were to be covered by legal professional privilege.

8 I have accordingly read both the diaries. On November, on account of the urgency of the matter, the case being listed for hearing on 15 November, I gave an oral ruling in the matter. Owing to the importance of the issues involved in regard to legal professional privilege and the welfare of children, I informed Counsel that I would set out the reasons for my decision in written form.

9 On my reading of the Respondent's pocket diaries for 1993 and 1994, it appears to me that a considerable amount of the matters noted therein is relevant to the present proceedings and therefore I must consider whether these matters should be discovered or whether they are covered by legal professional privilege. The relevant notes in the diaries fall into two categories. The first category consists of some sparse notes made from time to time of what appear to be fees received from private patients. It is clear that this material is proper for discovery and I am accordingly providing Counsel for both parties with a list of the pages in the 1993 diary on which this type of note appears and these pages are to be discovered by the provision of photocopies of the relevant pages to the Applicant's solicitor. None of this type of material appears in the 1994 diary.

10 The second category of material - contained in the 1994 diary - consists of day to day notes concerning the parties and their children. It should be noted that these entries do not occur until after the issue of the Applicant's proceedings on 11 February 1994.

11 Most solicitors and Counsel who regularly practise in the field of family law will be familiar with the advice which is frequently given to matrimonial litigants to keep careful notes of current developments and happenings, both as they affect the parties, and more importantly, as they affect the children. These notes are made for the specific purpose of instructing solicitor and Counsel and as preparation for the trial of the action.

12 On reading the Respondent's 1994 diary, I felt strongly that the material therein was of this nature and I would accept the submission of Ms. Clissmann on behalf of the Respondent that the diary was prepared for the purpose of litigation and thus would, in the normal way, fall to be covered by legal professional privilege.

13 I must therefore go on to consider the submission made by Mr. Durcan on behalf of the Applicant that where documents contain matters relevant to the welfare of children, legal professional privilege should not be applied to them and they should be disclosed.

14 The specific issue of possible conflict between legal professional privilege and the paramount welfare of children has not, so far as I am aware, been argued or decided to date in this jurisdiction and learned Counsel were also unable to discover any Irish decision on the matter. There is, however, some indication of the balancing of statutory privilege and the welfare of children to be found in the judgment of the learned Mr. Justice Finlay, then President of the High Court, in the case of S.M. and M.M. -v- G.M. and Others [1985] ILRM 186. The proceedings in that case involved inter alia a claim by the Plaintiffs, who were prospective adoptive parents for an Order dispensing with the consent of the mother, who was one of the Defendants, and an Order for interim custody and the claim by the mother for custody. The Adoption Board and the Adoption Society were amongst the other defendants. In Affidavits of Discovery filed on behalf of the Board and the Society, privilege was claimed in relation to certain documents based on Section 8 of the Adoption Act, 1976. This Section prohibits an Order for the discovery, inspection, production or copying of any book, document or record of the Board unless the court is satisfied that it is in the best interests of any child concerned to do so. In regard to the issue of discovery, the learned judge stated at p. 187 of the report:

"I have no doubt that the best interests of the child in regard to the determination of these proceedings when considered in the context of discovery depends upon discovery of such documents being made as would enable all the parties to those proceedings to present their case to the full."

"In detail this means that the Plaintiffs, as prospective adoptive parents, should be in a position to adduce the maximum amount of evidence establishing their suitability as custodians of the child and to defend themselves against any challenges or criticisms of that suitability and that the mother should have a like advantage and opportunity."

"The provisions of Section 8 of the 1976 Act clearly indicate an intention on the part of the legislature that the necessary confidentiality of documents and other papers, the property of the Adoption Board, should be maintained unless the best interests of the child concerned in a particular case is established to my satisfaction as a matter of probability to require their discovery or production. Once, however, that has been established, there cannot arise in my view any question of balancing the interests of an individual child concerned in a particular case against the general proceedings and efficiency of the activities of the Adoption Board."

15 Thus where the interests of a child were at stake, those interests overrode the statutory privilege claimed by the Board.

16 In regard to the issue of legal professional privilege, it appears to be settled law in the English jurisdiction that in wardship proceedings, the court may, in the interests of the welfare of a child, override legal professional privilege, at least in the case of experts” reports. Hershman and McFarlane in their comprehensive work...