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High Court of Ireland Decisions
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Judgment Title: S.Q -v- T.Q
Neutral Citation:  IEHC 389
High Court Record Number: 2012 46 M
Date of Delivery: 06/06/2014
Court: High Court
Composition of Court:
Judgment by: Keane J.
Status of Judgment: Approved
Neutral Citation:  IEHC 389
THE HIGH COURT
[2012 No. 46 M]
IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989 AND IN THE MATTER OF THE FAMILY LAW ACT 1995
JUDGMENT of Mr. Justice Keane delivered on the 5th June 2014
3. In addition to a decree of judicial separation, the wife seeks various ancillary orders that attract the provisions of s. 16 of the Family Law Act 1995 (“the 1995 Act”), whereby the court must endeavour to ensure that proper provision is made for each spouse and any dependent family member having regard to all the circumstances of the case. Under s. 16(2)(a) of the 1995 Act, in considering the orders necessary to effect proper provision, the court is required to have regard to, amongst other matters, the “property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future.”
4. The husband has a controlling interest in a particular group of companies. He was director and chief executive of the parent company when the present litigation commenced by Special Summons issued on the 15th November 2012. He has since averred that, while he remains a director, he ceased to be chief executive on the 31st December 2013, shortly before the issue of the present motion on the 14th February 2014. The group of companies employs over 500 people and operates a distribution network across the globe. The parent company is a privately owned one, registered in the State.
5. The husband holds more than 90% of the shares in the parent company. Two other directors own the remainder. The husband’s affidavit of means, sworn on the 14th of March 2013, values his shareholding at US$5,000,000.
6. Subsequent to swearing that affidavit, the husband obtained a report from a firm of chartered accountants on the value of his shareholding in the company. That report is dated the 14th June 2013. It values the husband’s shareholding at between €7,663,839 and €9,196,793 as at the 31st May 2013. In light of the arguments that have been advanced on behalf of the husband and which are addressed below, it is pertinent to note that the said valuation report appends the accountants’ letter of engagement, dated the 31st May 2013. While that letter notes that the relevant report is required for the purpose of legal proceedings between the husband and the wife, it does not acknowledge any distinction between the husband thus acting in his purely personal capacity and the husband acting in his role as an officer of the company. Indeed, the letter of engagement is not addressed to the husband at all but to another director of the company at the company’s premises. The letter records that the accountants concerned would be relying, inter alia, on such information and explanations from the company’s directors as those accountants deemed necessary to carry out that valuation. The valuation report refers to discussions that the accountants had with the husband and with another identified director of the company for the purpose of its preparation. Nothing in the report suggests or reflects any expressed concern on the part of the company or on the part of the husband that, in providing information and explanations for the purpose of the preparation of a valuation of the company to be used by the husband in his personal capacity in these proceedings, the directors (including the husband) risked breaching their fiduciary duty to the company or that they were thereby improperly disregarding the fact that the company has a legal personality quite separate from that of the husband.
7. The wife avers that, when the parties’ former family home was sold some years ago, the husband paid over the substantial proceeds of sale to the company as a loan. The parties then moved into a family home that was owned by the company and in respect of which the husband paid rent to the company. More recently, the wife has moved into another property in the jurisdiction that has been purchased in the joint names of the parties and the husband has borrowed a substantial sum from the company to purchase a home in the location abroad where he now lives and works. While these transactions, insofar as they have been properly accounted for, do not support the wife’s assertion that the husband has intermingled his own monies with those of the company, they do suggest that an examination of them, and of any similar transactions, may be necessary to properly assess the property and financial resources of the husband.
8. The wife sought detailed particulars and disclosure from the husband to assist the forensic accountants retained on her behalf both in valuing the husband’s shareholding in the company and in examining the financial transactions between the husband and the company. The husband has provided a certain amount of disclosure to the wife in this regard, but she asserts that the disclosure so far made is not adequate for those purposes.
9. At the culmination of a course of correspondence between the parties’ solicitors, the wife’s solicitors wrote on the 10th February 2014, enclosing a list of the remaining information and documentation required by the forensic accountants engaged on the wife’s behalf. That information and documentation comprises the following:
(b) Full management accounts for the year ended December 2013. The husband has already provided the wife with a balance sheet for the nine months to September 2013. The wife wishes, in addition, to be furnished with balance sheets up to and including December 2013, to include an analysis of the group’s working capital position and its net debt;
(c) A debt schedule of current debt, to detail capital and interest repayments, interest rates and term lengths, a copy of letter of loan/debt facility sanction, a copy of the purchase contract of a premises recently acquired by the company, showing delayed purchase payment terms, and a copy of the application sent seeking the financial assistance to fund the new premises;
(d) A copy of the group’s financial forecasts/budgets, including the split of earnings before interest, tax, depreciation and amortisation (“EBITDA”) for the next three years, including 2014;
(e) Details concerning a new manufacturing facility acquired in 2012;
(f) A breakdown of turnover for 2013 as between patented products and non-patented products, and a confirmation of the patents held;
(g) A breakdown of the intangible assets, as to goodwill acquired, patents or other as of December 2013;
(h) Details concerning the enterprise value, acquisition price, and the EBIDTA, of a company recently acquired by the company, as well as details concerning the funding of the acquisition;
(i) The nominal ledger for all directors’ loans accounts with the company to show the balances due, the amounts repaid by the company or advanced by the husband in the period from January 2010 to present. The wife suggests that information previously given by the husband concerning directors’ loans was incomplete; and
(j) A breakdown of the total sums paid to directors - as between total pension contributions, total paid to non-executive and executive directors in 2011, 2012, and 2013.
10. The basis upon which the husband has refused to provide the further documentation sought is that he is, in the words of a letter sent from his solicitors to the wife’s solicitors on the 18th November 2013, “neither prepared nor in a position to provide information pertaining to the Company, its operation, its management or accounts.”
The present application
12. Order 70A, rule 6 of the Rules of the Superior Courts, as amended (“the RSC”), deals with the obligation imposed on each of the parties in proceedings under the 1995 Act in which financial relief is sought to file and serve an affidavit of means. Where a party fails to properly vouch the matters set out in his or her affidavit of means, Order 70A, rule 6(4) empowers the court to grant an order for discovery or to make such order as it deems appropriate or necessary, “including an order that such party shall not be entitled to pursue or defend as appropriate such claim for any ancillary relief under the Act save as permitted by the Court and upon such terms as the Court may determine are appropriate or the Court may adjourn the proceedings for a specified period of time to enable compliance with any such previous request or order of the Court.” The wife seeks an Order under that rule on the basis that the provision by the husband of the information and documentation that the wife now seeks is necessary to properly vouch his affidavit of means and, in particular, the averment in it that the company in which he holds a majority shareholding has a value of $5,000,000.
The role of the court
14. In Prest v Petrodel  2 AC 415, the United Kingdom Supreme Court (per Baroness Hale of Richmond JSC) expressed the position in the following terms (at page 504):-
The husband’s objection
Relevance and necessity
18. It is common case that among the property and financial resources of the husband is his overwhelming majority shareholding in the company. The husband has vouched the value of that shareholding by providing an accountants’ valuation report. That report appends the letter of engagement of those accountants. That letter of engagement is addressed not to the husband but to the company. The letter expressly records that, as a term of their engagement, those accountants propose to rely on such information and explanations from the company’s directors as they (the accountants) deem necessary to carry out that valuation.
19. The wife has retained a firm of accountants to assist her in establishing the property and financial resources of the husband. They have produced what they describe as an “incomplete valuation” of the company, and by extension of the husband’s shareholding in it. They value the husband’s shareholding at between €12 million and €13 million on that “incomplete” basis. They have requested the provision of the information and documentation the subject of the present application in order to provide a more reliable valuation of that shareholding and to properly assess the significance of the substantial transactions between the husband and the company as part of an overall assessment of the husband’s property and financial resources.
20. On behalf of the husband it appears to be suggested that the tests of relevance and necessity should be applied by reference to the documentation and information deemed relevant and necessary to the valuation of the husband’s shareholding by the husband’s accountants. It is further suggested that the preparation of a “draft” or “incomplete” valuation of the husband’s shareholding by the wife’s accountants establishes that the wife has been provided with all documentation necessary for valuation purposes. Alternatively, it is argued that the wife’s accountants can obtain all of the information or explanations relevant and necessary to a valuation of the husband’s shareholding in the company, in particular details of the company’s EBITDA, by consulting the audited accounts of the company. I do not accept those contentions. There may well be disagreement between the parties’ respective accountants about what information and documentation is properly relevant or strictly necessary for the purpose of a proper valuation of the husband’s shareholding. But in circumstances where the husband’s accountants have sought - and, evidently, obtained without difficulty - from the company all such information and explanations as they deemed necessary for that purpose, it would be unfair to the wife and would hamper the Court in its own assessment of the husband’s property and financial resources if the information deemed reasonably necessary by the wife’s accountants for the same purpose was ruled irrelevant or unnecessary to disclose.
21. It seems to me both fair and just, and an aid to the discharge by the Court of its quasi-inquisitorial role in these proceedings, to order disclosure of the information and documentation now sought. However, that leaves over the question of against whom such an order can or should be made.
The separate legal personality of the company
23. Of course, the force of this submission derives entirely from the proposition that, in order to grant the relief that the wife seeks in the present application, the Court is required “to pierce the corporate veil” in a broadly similar manner to that in which the English High Court did so in Prest.
24. The appeal in Prest arose out of divorce proceedings in England in which a wife sought ancillary relief. At paragraph 3 of his judgment (page 374 of the report), Lord Sumption JSC describes the wide powers to grant such relief that have been conferred on the courts in that jurisdiction, including powers very similar to those available to this Court: (a) to order a spouse to make a periodical or lump sum payment to the other spouse, under section 8 of the 1995 Act; and (b) to order a spouse to transfer property to which he or she is entitled in possession or reversion to the other spouse, under section 9 of the 1995 Act. Lord Sumption JSC continues that, in considering the exercise of those powers, an English court must have regard to matters including the “income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future.” That is, of course, one of the matters to which this Court must have regard under s. 16(2)(a) of the 1995 Act.
25. Lord Sumption JSC then states (at paragraph 4, page 474 of the report):-
27. The specific issue that arose in Prest was not the nature and scope of the powers of the court to order disclosure by a spouse in matrimonial proceedings; it was whether the terms of a particular provision - s. 24 of the UK Matrimonial Causes Act 1973 - confer upon a court an implicit power to pierce the corporate veil where property is held by a company in which a spouse holds a majority shareholding. The UK Supreme Court held that they do not. The legislative provision at issue in Prest is identical, in material part, to s. 9(1)(a) of the 1995 Act, whereby, as available ancillary relief on granting a decree of judicial separation, a court may order the transfer by one spouse to another, or to a dependent or other person, of specified property “being property to which the first-mentioned spouse is entitled either in possession or reversion.” The application of that provision is not in issue here.
28. A broader issue that arose in Prest concerned what Lord Sumption JSC identified as a practice that had been in existence for some years in the Family Division of the English High Court whereby the assets of companies substantially owned by one party to the marriage were treated as available for distribution under s. 24 of the UK Matrimonial Causes Act, provided that the remaining assets of the company were considered sufficient to satisfy its creditors. In reprobating any such practice, Lord Sumption JSC pointed out (at para. 40, page 490 of the report):-
Possession or power
32. However, neither the husband’s terse averments just described nor the inter partes correspondence written on his behalf do anything to explain how the husband was able to procure the engagement by the company of a firm of accountants to assist the husband in valuing his shareholding in the company for the purpose of these proceedings on terms whereby the company agreed in advance to provide such information and explanations as those accountants deemed necessary in order to carry out that valuation. Nor do they explain how the husband was able to reconcile the concern he now professes - i.e. that the disclosure to his wife through him of any such information or explanations might breach the fiduciary duty he owes to the company as its director - with the fact that a firm of accountants was engaged by the company to assist him in his personal capacity in these proceedings on the terms just described, or with the fact that he has already made certain private information concerning the company’s affairs available to the wife’s solicitors for the purpose of these proceedings. I find it especially noteworthy that there is no evidence whatsoever before the Court concerning any request by, or on behalf of, the husband to the company for the information and explanations sought on behalf of the wife.
33. In advancing this limb of his argument, the husband relies on a series of cases culminating in the decision of the Supreme Court in Thema International Fund plc v. HSBC Institutional Trust Services (Ireland) Limited  IESC 3. The question that arose in that case was, in the words of Clarke J. (nem. diss.), “[t]o what extent can an Irish court require disclosure through the discovery process of documents which are held by a connected company, which is not a party to the Irish proceedings concerned?”
34. In answering that question, Clarke J. surveyed the existing jurisprudence both here and in other common law jurisdictions. The leading case remains that of Johnston v. Church of Scientology  1 IR 682. It involved an application for discovery of documents in the possession of a branch of the Church of Scientology incorporated in England for use in an action against the branch of that church incorporated here. It had been held in the High Court (per Geoghegan J.) that there was strong prima facie evidence that the English branch held the documentation at issue as agent for the Irish branch and he had ordered the latter to discover it for that reason. The Supreme Court allowed an appeal against that order on the basis that the plaintiff had failed to establish a relationship of agency between the two entities in respect of the creation or custody of the relevant documents.
35. Denham J. (Murphy and Murray JJ. concurring) identified the applicable rule in the following terms (at page 701 of the report):-
“I am therefore satisfied that within the meaning of the principle applicable to an affidavit of discovery I must at this stage at least decide prima facie that these documents are within the procurement of the plaintiff and that there is not any reason to believe that if the plaintiff in pursuance of the obligations of the directors of J.G. Mooney & Company properly have to them as their nominees requested the handing over even though it might be on a returnable basis of these documents that that request would be refused. If it is a further application may have to be made to me and different considerations might apply depending upon the grounds for that refusal.”
It will be appreciated that the learned President was dealing with a particular document which he believed - having regard to the relationship between the plaintiff company and the company in whose possession it was - could be obtained for the asking. But he made no concluded finding to that effect and, in the terms quoted, effectively reserved the right to the [party from whom discovery was sought] to return to the court to explain whether the document was forthcoming.
It may therefore have been an exception in practice rather than an exception in principle. Certainly the facts are readily distinguishable from the present case. Non-party discovery will resolve any such problems in the future where it relates to documents within the jurisdiction.”
38. Denham J. continued (at p. 702):-
“In the present case, there is no reason to suppose that a request for such documents by the defendant would be refused. Indeed, counsel for the defendant has admitted they will be made available to him for the purposes of the trial and that they have already been made available for the purposes of the preparation of the defendant’s defence. Prima facie such documents must be regarded as being available to the defendant if they are requested.”
Thus this too may be regarded as a practical solution to a particular set of circumstances rather than an exception in principle.”
40. That stated, the decision in Johnston confirms that the applicable legal principles are those set out by O’Flaherty J. in Bula Ltd. v. Tara Mines Ltd.  1 I.R. 487 and Quinlivan v. Conroy  1 IR 271. The general rule is that documents which are in the possession, custody or power of a party may be discovered; and a document is in the power of a party where that party has an enforceable legal right to obtain the document. And in Thema International Fund plc, the Supreme Court found that the amendment of Order 31, r. 12(1) of the Superior Court Rules in 2009, most notably by the substitution of the words “possession, power or procurement” for “possession or power” in that rule, has not materially altered the position in that regard.
41. Returning to the judgment of Clarke J. in Thema International Fund plc v. HSBC Institutional Trust Services (Ireland) Limited, having observed that the decisions in Northern Bank Finance Ltd. v. Charlton and Yates v. Ciba Geigy Agro Ltd. had been distinguished by Denham J. in Johnston v. Church of Scientology as “rare exceptions” to the general rule, the Supreme Court went on to distinguish the facts of those two cases from the facts at issue in the appeal before it, which were as follows. The plaintiff operated an investment fund in respect of which the defendant provided custodial services as part of the HSBC group of companies. The fund was significantly dissipated due to the depredations of a company associated with Bernard Madoff who was prosecuted and convicted in the United States of America for running what is reputed to have been the largest “ponzi scheme” in world history. The plaintiff alleged various failings on the part of the defendant in carrying out its obligations as custodian of the fund, giving rise to a claim in damages. In the context of those proceedings, the plaintiff sought discovery of relevant documentation held by any entity in the HSBC group worldwide. In the High Court, Charleton J. granted discovery of certain categories of documents held by HSBC entities in New York and Hong Kong on the ground that there was no reason to believe that the defendant could not procure those documents on request from those entities, against which Order the defendant appealed.
42. Clarke J. stated (at para. 5.6.):
(b) a right to possess the document; or
(c) a right otherwise than under these rules, to inspect or copy the document.”
48. The second Australian decision that Venning J. declined to follow was that in Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd  FCA 581. In granting an Order of the Sabre type in that case, Tamberlin J. noted the applicant’s reliance on the observations of Hoffman L.J. in Unilever plc v Chefaro Propretaries Ltd  FSR 135 (at 143) that, in principle, discovery of research and development documents should be available against a multinational corporation on a group basis. However, as Venning J. points out, the Court of Appeal in Unilever went on to conclude that there was no jurisdiction for the order for further and better discovery sought in that case.
49. In considering the case before him, Venning J. placed some emphasis on the condition precedent to the grant of a Sabre Order that the court must be satisfied that there would be a real likelihood of the request being complied with were such a request made. On the facts of that case, Nissan New Zealand had already made a request of Nissan Japan that it provide Nissan New Zealand with documents in Nissan Japan’s possession relevant to the matters at issue in the litigation. Nissan Japan had declined that request and, in correspondence from its general counsel, had given as its reason that it was not a party to the litigation and was not obliged to divulge documentation either to Nissan New Zealand or the plaintiffs. In that context, Venning J. stated:
…[T]here are strong reasons, most notably those cogently set out in Howard, for the traditional position adopted in the jurisprudence of common law countries. What is to happen if a party is ordered to make discovery of documents which it neither possesses nor has the power to require possession of, in the event that the party does not, in fact, make discovery? Is that party’s claim or defence to be struck out? Does the court have to enter into a detailed inquiry as to the efforts made and the bona fides of the position adopted by the connected company? What is the court to do if not fully satisfied about the attempts made?
5.19 The position adopted in most of the common law jurisprudence to which reference has been made and also adopted under the former rule in this jurisdiction under Johnston v Church of Scientology has, in my view, the considerable merit of certainty. A party either has documents in its possession or has the legal entitlement to require possession. In those circumstances the document must be discovered. In all other circumstances, the document does not have to be discovered.”
52. Having set aside the Order for further and better discovery that was the subject of the appeal in Thema International Fund plc, the Supreme Court made a number of additional observations about the practical implications of the legal principles identified in its judgment.
53. First, Clarke J. noted the availability of non-party discovery as an interlocutory relief in respect of any non-party amenable to the jurisdiction of the Irish Courts, stating (at para. 7.1.):
7.5 Finally, and in like vein, it is also open to a trial judge to draw any inference which may be appropriate in all the circumstances from any unexplained failure to make documents, which it is established are likely to exist and of significant relevance to the case, available for consideration at the trial. Parent companies and related companies are, of course, entitled to stand on their rights and not make documents available to connected companies involved in litigation in this jurisdiction. However, if they do so without good cause, they may well place the related company which is involved in litigation in Ireland in a difficult position if, as a consequence, the trial judge is of the view that there were pieces of the jigsaw missing and no legitimate explanation as to why that may be so. The trial judge will, of course, have to decide the case on whatever evidence is ultimately presented. However, if that evidence is incomplete and if the trial judge views any explanation for its lack of completeness as being inadequate, then, in an appropriate case, adverse inferences may be drawn.”
56. In these matrimonial proceedings, the evidence establishes that a company in which the husband owns a large majority shareholding has made available to the forensic accountants retained on behalf of the husband all such information and explanations as that firm of accountants deemed necessary to carry out the valuation of the husband’s shareholding in the company for the purpose of these proceedings. The wife has sought from the husband certain documents and information deemed necessary for the same purpose by the forensic accountants retained on her behalf and to assess the significance of the husband’s extensive financial transactions with the company. The husband has refused to provide the documentation and information sought on the ground that he is “neither prepared nor in a position to provide information pertaining to the [c]ompany, its operation, its management or its accounts.”
57. The net issue presented is whether that refusal falls to be dealt with by the trial judge according to the additional observations of Clarke J. at paras. 7.1 to 7.6 of the judgment of the Supreme Court in Thema International Fund plc, insofar as those observations may be applicable to the issues or evidence at the trial of the present action, or as a rare exception to the general principles governing discovery; that is, as a special problem requiring a practical solution. The following factors appear to me to be relevant to the resolution of that issue.
58. The first factor concerns the particular nature of the underlying proceedings .They involve the determination of the appropriate ancillary relief in judicial separation proceedings where proper provision is in issue, which means that the Court has a quasi-inquisitorial role and an obligation to inquire into the relevant matters of its own motion if necessary. It also means that the parties have a specific duty, not only to one another but also to the court, to make full and frank disclosure of all the material facts which are relevant to the exercise of the court's powers, including the nature and extent of the resources available to them. Accordingly, in this case the obligations of the Court, and the duties of the parties, go significantly further than they would in respect of the question of discovery in adversarial litigation generally.
59. The second factor that must be considered is the specific factual matrix presented. I have already alluded several times in the course of this judgment to the husband’s ability to secure the company’s unqualified co-operation with the forensic accountants retained on his behalf to prepare a valuation of the company and, by extension, of his shareholding in it for the purpose of these proceedings. Accordingly, the husband has already had made available to him by the company - and will have available for the trial of these proceedings - all such documentation and information as his forensic accountants require. I have also pointed to the absence of any evidence that the husband has requested the company to provide an equivalent level of co-operation to the forensic accountants retained on behalf of his wife for the same purpose, much less that any such request has been refused. Accordingly, this Court is dealing with documentation and information that it is reasonable to believe- having regard to the relationship between the husband and the company - could be obtained for the asking (as in Northern Bank Finance Ltd v Charlton), or which must be regarded, prima facie, as being available to the defendant if requested (as in Yates v Ciba Geigy Agro Ltd).
60. It is true that the Supreme Court in Johnston v Church of Scientology identified non-party discovery as the appropriate procedure to obtain such material in litigation of the sort at issue in that case. But the trial court in that case did not have the quasi-inquisitorial role or specific statutory obligation that the trial court in this case does, nor did the parties in that case have the particular obligation of candour that the parties in this case do; that is, an obligation to make full and frank disclosure of all the material facts which are relevant to the exercise of the court's powers, including, of course, their resources.
61. The third factor, closely interlinked with the other two, relates to the nature of the relief that is actually sought in the present application. This is not strictly an application for discovery at all. It is primarily an application for an order pursuant to Section 38(8) of the 1995 Act, requiring the husband to give to the wife such particulars of his property and income as may be required for the purposes of the proceedings. It need hardly be re-emphasised that the conduct of these proceedings entails a consideration of the ancillary relief necessary to make proper provision not only for the parties, but also for the dependent members of the family concerned. The particulars at issue are those scheduled to the wife’s notice of motion now before the Court. A further or alternative relief sought is an order pursuant to Order 70A, rule 6(4) of the Rules of the Superior Courts directing the husband to properly vouch his affidavit of means. One of the orders available to the Court under that rule is an Order adjourning the proceedings for a specified period of time to enable compliance with a previous request for vouching.
62. In the circumstances set out above, I have concluded that the decisions of the Supreme Court in Johnston v Church of Scientology and Thema International Fund plc, while clearly binding on this Court, are plainly distinguishable on the basis of the particular jurisdiction engaged in this case; the specific facts before the Court; and the sui generis nature of the relief sought in the present application.
63. The Court will order the husband to furnish to the wife the particulars of his property and income that are set out in the schedule to the wife’s notice of motion. The Court will further order that the proceedings herein be adjourned for a specified period to enable compliance with the wife’s request for the vouching of the husband’s affidavit of means by the provision of the documentation and information set out in the schedule to the notice of motion. I will hear the parties on what period of adjournment is appropriate.
64. As Finlay P. noted in Northern Bank Finance Ltd v Charlton, should any request the husband may make to the company to assist him in complying with the order I propose be refused, then a further application may have to be made to the Court in the context of the appropriate case management of these family law proceedings. Then, in the words of Finlay P., “different considerations might apply depending on the grounds for that refusal.” Ultimately, it may be necessary to resolve any issue that remains through one or other of the alternative courses of action identified by Clarke J. in Thema International Fund plc. But those matters, should they arise, are for another day.