MW v DW

• Jurisdiction: Ireland
• Judge: Mrs. Justice Denham,BARRON J.
• Judgment Date: 25 November 1999
• Neutral Citation: 1999 WJSC-SC 7994
• Court: Supreme Court
• Date: 25 November 1999

1999 WJSC-SC 7994

THE SUPREME COURT

Denham J.

Barrington J.

Barron J.

124/99

W v. W

W.

v.

W.

Citations:

RSC (NO 3) 1997 SI 343/1997 O.70A

RSC (NO 3) 1997 SI 343/1997 O.70A r15

K (M) V K (P) UNREP BUDD JAN 1996 (NOT AVAILABLE) SEE NOTE IN SHATTER FAMILY LAW 4ED 107

RSC (NO 2) (DISCOVERY) 1999 SI 233/1999 O.31 r12(4)

Synopsis

Family Law

Family; judicial separation; appeal from order of High Court refusing to transfer case from High Court in Dublin to Circuit Court in Cork; jurisdiction of courts concurrent; whether refusal to exercise discretion was in interests of justice; whether delay may be factor for consideration by judge in exercise of his discretion in considering the interests of justice; O. 70A, Rules of the Superior Courts.

Held: Appeal dismissed.

W. v. W. - Supreme Court: Denham J., Barrington J., Barron J. - 25/11/99 - [2000] 1 ILRM 416

In the circumstances of the present case the refusal to exercise the discretion to remit the case to the Cork Circuit Court was just as to do so would only further delay proceedings which were already protracted despite the fact that the case did not involve any complex legal issues. The Supreme Court so held in refusing the appeal.

1 Mrs. Justice Denhamdelivered the 25th day of November, 1999.

2 This is an appeal from an order of the High Court made on 30th April, 1999 refusing to remit the action to the Circuit Court. The Applicant/Respondent (hereinafter referred to as the "applicant") in these family proceedings is a housewife and homemaker who has issued proceedings seeking a decree of judicial separation and ancillary orders. Owing to the ages of the children custody and access are not serious matters in contention and the case will focus on financial issues. The Respondent/Appellant (hereinafter referred to as "the respondent") is the husband and sole financial provider for the family.

3 The applicant brought these family law proceedings in the High Court. By notice of motion the respondent sought an order remitting this action to the Circuit Court in Cork. In the affidavit grounding this application the solicitor for the respondent deposed that the respondent had a quintuple heart by-pass in or around 1984 and had further serious heart trouble in 1997 and that he would find it most stressful to travel backwards and forwards to Dublin; that both the parties reside in Cork, all the witnesses which may be called reside in Cork, the respondent's accountants are situated in Cork, the family home is situate in Cork, the Solicitors for the applicant and the respondent are all situated in Cork; that the respondent will be retiring in September, 1999 and his earning capacity will be totally diminished and that the costs incurred in mounting a High Court action would eat up the family assets at a time when the respondent's employment life is at an end, all of which would have the effect of diminishing the applicant's, the respondent's and the children's quality of life; that the applicant instituted proceedings in the Circuit Court in Cork in or around 1997, in a previous family law action which proceedings were withdrawn from Court when the parties entered an agreement; and further, that the rateable valuation of the family home of the parties is less than £200.00.

4 The applicant's solicitor deposed that the special summons was issued on 14th October, 1998, an appearance was entered, an affidavit of means was filed by the respondent, a notice of change of solicitors was served by the respondent's present solicitors, a replying affidavit, defence and counterclaim were filed on behalf of the respondent wherein the applicant's claim was denied and the respondent sought the making of seventeen orders against the applicant; that at no time did the respondent seek remission to the Circuit Court. It was further deposed:

"... in the course of these proceedings and in general the [respondent] has been covert in relation to his financial affairs and dilatory in making full and proper disclosure and discovery to the [applicant] and I say and believe that an Order for Discovery had to be obtained on 28th April, 1999 in respect of the documents which the Applicant has been seeking since May of 1998 ..."

5 It was also deposed that the respondent was a man of considerable means being the proprietor of an Insurance Brokerage in the City of Cork. It was deposed that in relation to travel the respondent had recently returned from a golfing holiday in South Africa and would shortly be travelling to Royal Ascot to attend a race meeting.

6 The final grounds deposed were:

"... the High Court is the appropriate venue for this case to be pursued having regard to the wealth of the Respondent and his reluctance to make full disclosure of his assets and means to the Applicant.

... that the Respondent has used every device to delay the trial of these proceedings and I believe that the bringing of this Application at this late stage is merely another such device."

Law

7 The relevant rule is to be found in Order 70A, Rules of the Superior Courts which was set out in Rules of the Superior Courts (No.3) of 1997 (S.I. No.343 of 1997). These Rules came into operation on the 1st day of September, 1997 and they make provision for family law proceedings. Rule 15 states:

8 2 "(1) Where any action or proceeding is pending in the High Court which might have been commenced in the Circuit Court or the District Court any party to such action or proceeding may apply to the High Court that the action be remitted or transferred to the Circuit Court or the District Court (as the case may be) and if the High Court should, in exercise of its discretion, consider such an order to be in the interests of justice, it shall remit or transfer such action or proceeding to the Circuit Court or the District Court (as the case may be) to be prosecuted before the Judge assigned to such Circuit or (as the case may require) the Judge assigned to such District as may appear to the Court suitable and convenient, upon such terms and subject to such conditions as to costs or otherwise as may appear just.

9 (2) An application under this rule to remit or transfer an action or proceeding may be made at any time after an appearance has been entered."

High Court

10 There was an ex tempore judgment of the High Court. Counsel prepared notes of the judgment, however they were unable to furnish an agreed note. The learned trial judge indicated that the note of Counsel for the applicant accorded with his note. In the ex tempore judgment reference was made to issues of confidentiality, to a previous judgment of Budd, J., M.K. v. P.K.. Unreported, High Court, January, 1996; (see Shatter, A.J., "Shatter's Family Law", Fourth Edition, Butterworths, Ireland, 1997, p.107, note 50), to the figure of £1.8m, tothe complexity of the case, to the fact that in certain circuits over twenty such cases would be listed in a day. The learned trial judge held that in the circumstances he was not satisfied that the case be remitted, that Dublin was an appropriate place for the case to be heard.

Appeal

11 On this appeal no issue as to confidentiality was argued. Also, it became clear that the figure of £1.8m related to the turnover of the company of the respondent - which business, we were informed, is now sold and a pension is in place.

12 The onus is on the person seeking to have the case remitted. Thus, the onus rests on the respondent in this case.

13 The court has a discretion. The judge has to balance the relevant matters raised. The test to be applied is that an order to remit should be in the interests of justice.

14 The High Court and Circuit Court have a concurrent jurisdiction. No issue on this aspect of the case arose.

15 Delay is not a bar to seeking to remit an action in view of the Rule 15(2) which states that an application to remit may be made at any time after an appearance has been entered. However, if an application is not made at an early date and the proceedings are joined and advanced a delay in seeking to remit may in all the circumstances of the particular case be a factor for consideration by the High Court judge in the exercise of his discretion in considering the interests of justice. In this case the delay in seeking the order to remit was not such as to weigh against the respondent. However, the issue of delay in general in the case was an important factor in considering the interests of justice.

16 It was stated that the issues in this action will be financial only. The respondent is the sole earner. The assets include the family home (with a rateable valuation of less than £200.00), the proceeds of the sale of the respondent's business, and other assets abroad which are suspected by the applicant.

17 The applicant submitted that the waiting list of Cork Circuit Court is longer than that of the Family High Court in Dublin, the case could get an earlier date in Dublin. Further, the applicant submitted, if the matter was ultimately heard in Cork and there was an appeal, there is a waiting list of some years for High Court appeals in Cork, making the overall litigating period even longer.

18 There has been a general lack of co-operation by the respondent not unusual in family law cases. The matters in issue are not too complex - being largely financial. The parties take dramatically opposed views on the issue of assets and consequently there appears to be a full fight on this aspect of the case.

19 This is a dysfunctional family, of parents and children, living under one roof, pending the court decision on the action. In light of the circumstances time is an important aspect of this case. Also important is access to court on interim and interlocutory applications to process the case. The probability is that proceedings in Cork would take longer and whilst the financial affairs on the surface appear not too complex the intricacy...