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W.Y.Y.P. v P.C. ([2013] IESC 12) is an Irish Supreme Court case that concerned the issue of material non-disclosure when assessing costs.

 Background 

The respondent was born in Hong Kong and the appellant was born in England. Both hold passports from the United Kingdom. They met while both were working for a financial services company in Hong Kong before marrying on September 10th, 1991. The respondent ceased work in 1991 and became responsible for the management of the household and the care of the children, while the appellant retired early from his position in 2000. Divorce proceedings were in Hong Kong in January 2002, and a decree absolute was granted on the 23rd of July, 2002. The appellant was granted custody of the children and leave to remove the children permanently from Hong Kong in the summer of 2002. However, access was granted to the respondent, who was a litigant in person. The appellant and the children and the respondent moved to Ireland in 2002 and have been residents here since that time.

High Court proceedings

The respondent brought a motion to the High Court for leave to make an application under Part III of the Family Law Act, 1995, for a relief following the divorce. This was supported by the respondent’s affidavit sworn on the 9th December, 2005. The facts in the affidavit alleged that the appellant’s behaviour during the marriage and the divorce proceedings was abusive and domineering. The special summons was issued on the 21st December 2005, and served on the 20th January, 2006. The appellant entered an appearance to his right to contest the jurisdiction of the Court to hear and determine the proceedings. The appellant filed a notice of motion seeking an order, inter alia, setting aside the order of the High Court of the 16th December, 2005, which granted leave to the respondent pursuant to Part III of the Family Law Act, 1995.

The motion was grounded by an affidavit of the appellant, sworn on the 12th April, 2006. The appellant swore that the

“Affidavit sworn by the [respondent] is replete with falsehoods and untruths. In particular, I say that the averment made by her in paragraph 45 of her Affidavit that she could not seek any financial relief from the Courts of Hong Kong having regard to the Decree of Divorce which was made in July, 2002, is simply wrong and untruthful…In the premises, the leave granted by [the High Court] was granted on a false and incorrect premise and accordingly the leave granted by [the High Court] should now be set aside.”

High Court judgment and ruling

The High Court considered that the Court had jurisdiction to set aside leave granted pursuant to s. 23(3) of the Family Law Act, 1995, on a ground other than mala fides and adopted the principles set out by Hardiman J. in Adam v. Minister for Justice [2001] 3 IR 53

Sheehan J. found that:

“there has been a material non disclosure of a serious nature in the wife’s affidavit on foot of which leave was obtained.”Sheehan J. also considered whether, having set aside the original leave, he should grant fresh leave based on the facts which were before the court. Sheehan J. concluded that he should not grant said leave.

On the 7th December, 2007, the counsel for the appellant made an application to Sheehan J. for costs on three grounds: (a) costs normally follow the event;

(b) the appellant brought the motion to set aside because the original application for leave was based on inadequate disclosure and it affected his interests;

(c) part of the motion dealt with a part of the case that was withdrawn on the day prior to the motion’s hearing date.

The High Court ruled that “the just thing to do is to make no order as to costs.”

Notice of appeal

The appellant filed a notice of appeal on the 19th February, 2008, on the following grounds:

“i. That the learned High Court judge misdirected himself in law in refusing to grant [the appellant] his costs of the motion/hearing;

ii. That the exercise of discretion by the learned High Court judge in refusing to grant [the appellant] his costs of the motion/hearing was unreasonable and/or unjust having regard to the circumstances of the case and the outcome of the motion/hearing;

iii. That the learned High Court judge failed to give any reasons for the manner in which he exercised his discretion;

iv. That no reason existed in the particular circumstances why costs should not follow the event.”

Decision

Although the motion concerned a jurisdictional point, the Court focused on the financial maintenance of a spouse and other matters, including custody of the children. The appellant stressed the conduct of the respondent and it was found there was “a material non-disclosure” although, there was no evidence of mala fides. This was based on the consent order of the Hong Kong court of the 30th May, 2002, which was shown in these proceedings. Paragraph 3 relates to the respondent’s claims against the appellant, stating:

“The respondent’s claims for ancillary relief against [the appellant] and/or his estate for maintenance pending suit, secured periodical payments, lump sum provisions and property adjustment and property transfer provision, … shall be dismissed upon the making of this Order.”

There is no reference to unsecured periodical payments in the Order and, in particular, there is no statement that a claim for unsecured periodical payments is preserved.

The respondent stated that she didn't know of the transcript shown by the appellant, that she was acting under pressure during the Hong Kong court proceedings and understood that she couldn’t seek a periodical payment order in the future.

While the conduct of a party is considered by a trial judge, it is only one factor. Material non-disclosure by a party is a serious matter but it does not necessitate an adverse costs order, as was seen in Kerwin v. Aughinish Alumina Ltd, (Unreported, Supreme Court, 20th February, 2003.)

The High Court had evidence of the order and transcript in Hong Kong. The position of periodical payments was not addressed in the order. While periodical payments were addressed in the transcript, the transcript didn't support the appellant’s position. These matters were before the High Court and the Court had a discretion to rule on the matter of costs.

It was important that the High Court found that the respondent’s allegations of duress and undue influence were supported by the evidence. The Court considered all the evidence before deciding whether to grant costs. The appeal was dismissed as a result

C.O'S' & anor v Doyle & ors ([2013] IESC 60) is an Irish Supreme Court case that considered the constitutional rights of a family to decide t

Counsel for C.O’S. contended that the Circuit Judge should have adjourned the case to allow the mother to gather evidence regarding alleged medical risks to the child. It is said that, in deciding the issue in the absence of such evidence, the respondent fell into error. The mother avers that her counsel made submissions to the learned Circuit Judge who rose to consider these; upon returning, the judge asked if there were any further submissions from either side and, if there were, she would hear them at that juncture. The appellant says that her counsel asked for the opportunity to call evidence on another day but the Circuit Judge declined to adjourn the case.

This was a decision within the trial judge’s discretion (see the judgment of Keane C.J. in R.B. v A.S. [2002] 2 IR 428 at 447). Any argument based on fair procedures must be seen in context. The decision sought to be impugned by the appellant was a decision by the Circuit Judge sitting as an appellate court. Their he application had previously been dealt with in the District Court on the 23rd May, 2012. The appellant did not then call medical or expert evidence. She testified herself. By the time the Circuit Court appeal came on, both the mother and her advisors must be taken as having been well aware of the nature of the material upon which the father was relying. The District Court appeal to the Circuit Court had been granted an expedited hearing, and was listed for hearing on the 14th June, 2012. The case proceeded. Counsel did not apply for an adjournment prior to the judge’s ruling; nor give any indication that witnesses were unavailable. The appellant had no other witnesses in court or then available. It was open to the appellant, both before the District Court, and before the Circuit Court to call what evidence she wished. She did not do so. The decision to decline the application to adjourn was made on an issue of discretion. A review court will be slow to intervene on an issue regarding the exercise of a court’s discretion unless it is shown that the discretion was exercised in such a manner as to call the jurisdiction of the court into question.

The mother didn’t present medical or scientific evidence in the District or Circuit Court Witnesses were only present at the High Court hearing. The appeal was dismissed as a result.

 Supreme Court Appeal 

The issue was between two unmarried guardians, not one between the State, on the one hand, and a constitutional family, on the other. For the District Court, or on appeal the Circuit Court to have a role in a dispute of this nature, it is not necessary to show a failure of parental duty. Article 42.5 of the Constitution provides:

“In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.”Section 11(1) of the Act specifically provides that an application may be made by a guardian having regard to any issue pertaining to the child’s welfare. The matter in issue undoubtedly relates to T.B.’s “physical” welfare (see the definition of welfare as cited earlier). The operation of s. 11(1) does not proceed on the basis that there has necessarily been any failure of parental duty. By virtue of the recognition contained in s. 6(4) of the 1964 Act, the mother is T.B.’s guardian. By virtue of the District Court order of 2007, the father is T.B.’s guardian.Once a father is considered to be a guardian of a child, his rights and position in the Court are altered.

The Appeal was dismissed, as no reason was given for no scientific or medical evidence being presented at the initial hearing.