X v Y(3)

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Max Barrett
• Judgment Date: 21 February 2024
• Neutral Citation: [2024] IEHC 92

In the Matter of the Family Law (Divorce) Act 1996

Between

X

Applicant

and

Y(3)

Respondent

[2024] IEHC 92

THE HIGH COURT

Summary

In this judgment I indicate how I will proceed, following on the enactment of s.56 of the Courts and Civil Law (Miscellaneous Provisions) Act 2023, as regards the disclosure of certain documents, evidence, and information that comes within s.40(6)/(7) of the Civil Liability and Courts Act 2004, as amended by the said later provision.

For the reasons set out in X v. Y (2) [2022] IEHC 584, I am not including the Record Number in this judgment.

JUDGMENT of Mr Justice Max Barrett delivered on 21 ^st February 2024 .

1 . By notice of motion of 7 ^th July 2023, Mr X, the applicant, seeks (i) an order granting liberty to him to disclose certain documentation from the couple's family law proceedings in support of a complaint to the LSRA, (ii) a like order in support of certain criminal complaints to An Garda Síochána, (iii) an order granting liberty to An Garda Síochána to disclose certain material to the DPP, 1 and (iv) an order excepting the disclosure of the s.47 report in the said family law proceedings. At a later point in the notice of motion, Mr X seeks, “ should the court refuse to grant the [just-mentioned] …orders”, separate, more detailed orders that, in truth, are a more focused and detailed amplification on the just-mentioned orders.

2 . The law in focus in this application is s.40 of the Civil Liability and Courts Act 2004, as amended by s.56 of the Courts and Civil Law (Miscellaneous Provisions) Act 2023. As amended (and so far as relevant) s.40 of the Act of 2004 now reads as follows:

“ (6) Nothing contained in an enactment that prohibits proceedings to which the enactment relates from being heard in public shall operate to prohibit the

production of a document prepared for the purposes or in contemplation of such proceedings or given in evidence in such proceedings, to (a) a body or other person when it, or he or she, is performing functions under any enactment consisting of the conducting of a hearing, inquiry or investigation in relation to, or adjudicating on, any matter, or (b) such body or other person as may be prescribed by order made by the Minister, when the body or person concerned is performing functions consisting of the conducting of a hearing, inquiry or investigation in relation to, or adjudicating on, any matter as may be so prescribed.

(7) Nothing contained in an enactment that prohibits proceedings to which the enactment relates from being heard in public shall operate to prohibit the giving of information or evidence given in such proceedings to (a) a body or other person when it, or he or she, is performing functions under any enactment consisting of the conducting of a hearing, inquiry or investigation in relation to, or adjudicating on, any matter, or (b) such body or other person as may be prescribed by order made by the Minister, when the body or person concerned is performing functions consisting of the conducting of a hearing, inquiry or investigation in relation to, or adjudicating on, any matter as may be so prescribed.

(7A) The leave of a court shall not be required for (a) the production of a document in accordance with subsection (6), or (b) the giving of information or evidence in accordance with subsection (7).”

3 . I understand from the parties that ss.7A was enacted to address an issue that I identified in a previous judgment concerning the need for the leave of a court to produce a document or evidence from in camera family law proceedings, a need that no longer arises in the circumstances contemplated by s.40(7A). Thus while the facts in this case are essentially unchanged since my judgment in X v. Y [2022] IEHC 584, the Oireachtas has made a significant change to the law through its enactment of s.56.

4 . It was suggested for Ms Y that ss.7A is not quite the liberalising provision that it may at first glance seem. This is because those subsections refer to:

“ (6) … (a) a body or other person when it, or he or she, is performing functions under any enactment consisting of the conducting of a hearing, inquiry or investigation in relation to, or adjudicating on, any matter, or (b) such body or other person as may be prescribed by order made by the Minister, when the body or person concerned is performing functions consisting of the conducting of a hearing, inquiry or investigation in relation to, or adjudicating...