McG. (P.) v. F. (A.) [2000] IEHC 11 (28th January, 2000)

1. By Order of the Master of the High Court made on 14th May, 1997 Dr. Gerard Byrne was appointed as medical inspector for the purposes of this petition for nullity of marriage. The directions of the court have been sought because of controversy as to the scope of the powers and duties of the medical inspector and in particular in respect of conflicts as to whether the inspector may view (i) a video of the wedding, and (ii) the contents of a 1993 diary, the property of the Respondent, which was removed from her home by the Petitioner. Thirdly directions are sought on the question as to whether the medical inspector should, or is entitled to, interview third-party informants who may have information which might assist the medical inspector, an experienced consultant psychiatrist, in respect of his diagnosis of the state of mind of the parties around the time of the ceremony of marriage in September 1993.

2. In this contested nullity application it may be helpful if I set out a brief history of how this motion for directions has come before this court. The petition was presented on 1st October, 1996 in respect of the alleged marriage which took place on 25th September, 1993. There are no children of the marriage. Dr. Gerard Byrne was appointed as medical inspector by Order of the Master made on 14th May, 1997. The Respondent attended for interview with Dr. Byrne on 13th August, 1997 and on 26th August, 1997. The Petitioner then attended on Dr. Byrne on 23rd September, 1997 and on 6th January, 1998. According to the Petitioner in his Affidavit sworn on 10th March, 1998 at paragraph 4, he advised Dr. Byrne that, in relation to certain matters, there were persons other than the parties who had information and knowledge relevant to the relationship between the parties and it was his opinion, which he expressed to Dr. Byrne, that it would be important that Dr. Byrne speak with these people. He listed these people as four friends of himself, the Petitioner, and his brother. At paragraph 5 of this Affidavit he said that he had come into possession of a diary written by the Respondent in which there are entries in her handwriting very relevant to the issues and that he came into possession of this when he found it on the kitchen work top in the family home towards the end of September 1996. In a replying Affidavit sworn on 31st March, 1998 the Respondent questioned the relevance of the third-party informants. It was clear from the sequence of interviews that Dr. Byrne had interviewed her twice before he interviewed the Petitioner from whom he became aware of the Petitioner’s belief that these persons might have information of relevance. As for the diary, the Respondent only became aware that her diary was missing when she received a copy of the Petitioner’s Affidavit sworn on 10th March, 1998 and then searched the box containing her private and personal possessions and discovered that the 1993 diary was missing from the box which she kept in a wardrobe in her bedroom in the family home. She says that it was not possible that the Petitioner could have found the diary on the kitchen work top in the family home as it could only have been taken by extraction from the box and she regarded the removal and retention of her diary as amounting to a theft of her personal property and seeks the return thereof and any copies made of the contents of her personal diary.

3. By Order of the Master made on 14th May, 1997 Dr. Gerard Byrne was appointed to carry out a psychiatric rather than a physical examination of the Petitioner and of the Respondent and to report in writing to the court thereon, the said examination to be carried out at such time and place as may be agreed between the parties and the Registrar of the Central Office. It was also Ordered that the Petitioner and Respondent and their respective Solicitors and the psychiatrist so appointed should attend at the agreed time and place in order that the Petitioner and Respondent may then and there be identified as the parties in this cause to be examined. By the same Order the Master fixed the issues to be tried as to whether the Petitioner or the Respondent lacked the capacity to enter into and/or sustain a normal life-long marital relationship with the other party by reason of his or her state of mind, mental condition or emotional and psychological development at the date of the ceremony of marriage or by reason of his or her state of mind, mental condition or emotional and psychological development at the date of the ceremony of marriage and whether the Petitioner gave a full free and informed consent to the said marriage and such other issues as to the court shall seem fit. Thus the psyche of each of the parties at the time of the marriage is much in issue.

4. In view of the suggestion that Dr. Byrne should interview five third-party informants and also the suggestion that the medical inspector should view entries made by the Respondent in her handwriting in her diary made in the year of the wedding ceremony, it was thought prudent that directions should be sought from the High Court. A motion dated 11th March, 1998 was issued seeking directions from the court. This motion came before the High Court on 24th April, 1998. Neither party has furnished a copy of the Order made on that day but my understanding is that the court declined to make any specific order but indicated that the interviewing of third-party informants could lead to difficulties. In the ensuing months issues crystallised in correspondence between the Solicitors. It became clear that the medical inspector felt that interviews with third-party informants, who had known the parties at the time of the marriage, could assist him in forming an opinion as to whether either party was suffering from a personality disorder at that time. The Petitioner had supplied the medical inspector with the names and addresses of five prospective third-party informants. The Respondent’s Solicitor contended that such interviews would involve stepping outside the scope of the order made by the Master of the High Court as this was confined to the conduct of an examination of each of the parties and the preparation of a report based on such examination. By letter dated 11th August, 1998 Dr. Byrne wrote to the Respondent’s Solicitor saying that he intended to proceed with interviews with the five third-party informants as interviews with informants are a standard practice in carrying out a psychiatric assessment when a personality disorder is suspected. He also said that he intended to view the wedding video and invited an application to court for clarification if there was objection to his taking these courses of action.

7. I have had the benefit on 26th March, 1999 of hearing Dr. Byrne as a witness. I preface my summary of Dr. Byrne’s evidence as to the difficulties he envisaged in carrying out his task of assisting the court by making a full report as the duly appointed medical inspector by stating that Dr. Byrne is an experienced and well respected child psychiatrist. He frequently assists the court with expeditious and expert reports. In this case he has stressed that the directions given are likely to set a precedent for medical inspectors in nullity actions in the future. He made it clear that he would accept the court’s ruling but he needed directions as to how to fulfil the requirements of the court in respect of carrying out his assessment of the parties within constitutional and legal requirements. He explained that to carry out a full psychiatric assessment he needed to interview third-party informants and that this was an accepted psychiatric practice in cases of diagnosis of a suspected personality disorder. When it was suggested to Dr. Byrne that he could be present in court while the third-party informants gave evidence, he explained that this would not be satisfactory as he could not delegate his role in making a proper assessment to lawyers as they might not ask the appropriate questions or follow-up questions and the courtroom would be the wrong atmosphere for eliciting the information he needed for his diagnosis.

8. Suggestions were made that difficulties might be overcome by evidence being taken on commission with Dr. Byrne doing the interviewing and with a stenographer present. The suggestion was also made that a double frame video unit with an operator under the control of Dr. Byrne would record visually and aurally the interview by Dr. Byrne. Dr. Byrne also made the point that the assessment being made for the purpose of his report was a forensic assessment and is unlike a confidential clinical assessment in that the purpose is to assist the courts and the interview has to be done even if one party is reluctant. As for the suggestion that evidence might be taken on commission with Dr. Byrne asking questions of the third-party informant, this involves considerable disadvantages. In matters of the psyche it seems to me that the court needs to hear the tone and experience the vibrancy, colour and context of the words spoken. It is preferable that the court should hear the witnesses and see them. Likewise real live witnesses in the witness box are infinitely preferable to witnesses being seen on a video. Both commissions and video evidence slow a case up and involve factors in a setting not under the court’s direct control.

10. On the issue of the diary, it seems to me that the removal of the diary by the Petitioner or his agent is admitted. It makes little difference whether the diary was removed from the kitchen work top or from the box in the wardrobe in the bedroom in which the Respondent kept her most personal property. The diary was taken surreptitiously and without the Respondent’s consent. Counsel for the Respondent contends that the diary was obtained by unconstitutional means involving the invasion of the wife's privacy by an intrusion which deprived her of her intimate records. Having referred to a well known line of authority stemming from Mary McGee -v- Ireland, Kennedy and Arnold -v- Ireland and Trimbole -v- Attorney General, her Counsel relied particularly on an unreported judgment of McMahon J. in OC -v- TC delivered on 9th December, 1981. That matrimonial case involved a claim for maintenance by a wife. In June 1981 the wife returned to Ireland from the United States and, while her husband was abroad, she brought two furniture removal vans from England with a number of workmen and two men who appeared to be bodyguards to the husband’s house. The wife removed a considerable quantity of furniture in the vans and also removed letters and photographs from the husband’s bedroom. She retained the photographs and letters and they were tendered in evidence at the trial. McMahon J. ruled that they were inadmissible because they had been obtained in flagrant violation of the husband’s constitutional right to the inviolability of his home (see The People AG) -v- O’Brien [1965] IR 142.) Counsel for the Respondent argues that the same principle applies in this case as the Petitioner in conscious and deliberate violation of the Respondent’s rights removed her diary from the kitchen table or from her box of private papers in her wardrobe. He contends that the diary and its contents are now inadmissible because they were obtained in flagrant violation of the Respondent’s constitutional rights. In short, he argues that the diary is now “the fruit of a poisoned tree” and that the violation of her rights has been such that she should be put in the position as if her rights had not been violated. Accordingly, not just the diary should be returned to the Respondent, but also all copies should be returned to her forthwith and since the diary is now inadmissible, the contents of the diary should not be allowed to be brought into court by the backdoor through the giving of a psychiatrist’s evidence as to the contents thereof. He argued that it was difficult to contemplate a more vicious attack on a person’s psyche and dignity than the theft of an intimate personal diary.

11. Counsel for the Petitioner submitted that the diary could assist the medical inspector in forming an opinion as to the Respondent’s state of mind at the time of the marriage. She argues that direct evidence as to state of mind is notoriously difficult to come by and usually has to be deduced from the behaviour of people. Thus evidence contained in a contemporaneous record made by a party as to her state of mind at the time of the marriage may be important to the determination of the case. Since a nullity action is dealt with in camera the disclosure of the contents of the diary will be limited to the parties involved in the case, their representatives and the court officers including the medical inspector. The intrusion on the Respondent’s privacy will be limited whereas the public interest in the administration of justice and the certainty of marriage status both warrant the Court acting on the best available evidence. The courts have a discretionary power to order the disclosure of documents. It is arguable that the Petitioner would be entitled to get sight of the diary if he applied for discovery. Confidentiality is not a recognised form of privilege.

12. It may well be that the 1993 diary is discoverable and that the Petitioner will be advised that there are documents which may be relevant to the suit in the Respondent’s possession. If so then a motion for discovery may be brought and, with due process, the issue as to whether discovery of documents is appropriate can be argued and, if necessary, resolved by the court. Obviously there may well be arguments which can be made on the basis of the line of argument known as the “fruit of the poisoned tree” theme on the one hand and, on the other hand, as to the importance of all relevant admissible material being adduced for the assistance of the court in its enquiry. I have no doubt that there is a need for due process in view of what would appear to be a brazen and outrageous intrusion into the Respondent’s most personal and intimate privacy. If a motion for discovery is brought in due course, then there can be no suggestion that shortcuts have been allowed to be taken by an apparently blatant larceny of the diary. Arguments as to whether there has been a deliberate and conscious breach of the Respondent’s constitutional rights are best dealt with in a formal discovery motion particularly as the outcome of a nullity action can affect both status and property rights. In Kennedy and Arnolds -v- Ireland [1987] IR 587 at page 593 the President of the High Court, Hamilton P., stated that;

What is common ground is that, having obtained the contents of the wife’s box file, the husband photographed them (in the sense of making photocopies of them, which he has retained). For convenience, I will refer to those photocopies so obtained as ‘the box file copies’. Submissions were made to me as to the propriety of that conduct, and I learned, with interest, of the problems that practitioners experience when they are asked to advise spouses on the brink of marriage breakdown as to whether it is proper to photograph secretly documents belonging to the other spouse. These involve deep questions. Again, I think they are better left to be resolved by those who have the task of framing the rules of professional etiquette or, if necessary, by a court with appropriate authority in a case in which the matter arises directly for consideration or for an authoritative obiter statement”

which all recognised the advances in knowledge of the psyche and that a decree of nullity could now be granted where the Court concluded that a spouse, because of an emotional disability or incapacity, or an inherent quality or personal characteristic, at the time of the marriage was unable to enter into and sustain a normal marital relationship. I said that, accordingly, it might appear that an appeal against the Master’s Order appointing a consultant psychiatrist as a medical inspector in a case involving these types of issues would be tantamount to an invitation to the Court to adopt the sedentary position of King Canute awaiting the incoming tide of psychiatric and psychological evidence. I referred to the law of nullity in Ireland having developed from the principles of Canon law and that since 1523 the Ecclesiastical Courts of the Church of Ireland continued broadly to apply the Canon law principles. A fundamental principle involved was, and continues to be, that inquiry as to the validity of a marriage was more inquisitorial and less adversarial in nature than the usual case. It seems to stem from this and the legislative provisions that the procedure of a more inquisitorial type in operation before 1870 continues to entitle the Court to look for independent evidence of a probative nature to assist in the determination of key facts as to whether a marriage is valid and subsisting or null and void.

16. Counsel for the Petitioner in the present case suggests that the Court was contemplating the inevitability of hearsay evidence as an element in an expert witness’s testimony. I did not intend to give this impression and so it may be helpful, since both parties are seeking further directions in this case, if I revisit aspects of the law governing expert testimony particularly in view of the incoming tide of evidence in respect of the psyche in these cases. However, first it is necessary to set out the relevant provisions of statutes and the wording of Order 70 Rule 32 which are the provisions governing the appointment of a medical inspector. The Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870 came into effect on 1st January, 1871 and applied to Ireland only. Section 23 stated:-

S.23 “Subject to such rules and regulations as may be established as herein provided, the witnesses in all proceedings before the said Court for Matrimonial Causes and Matters, where their attendance can be had, shall be sworn and examined orally in open court: Provided that parties, except as herein-before provided, shall be at liberty to verify their respective cases in whole or part by affidavit, but so that the deponent in every such affidavit shall, on the application of the opposite party or by direction of the Court, be subject to be cross examined by or on behalf of the opposite party, orally in open Court, and after such cross examination may be re-examined orally in open Court by or on behalf of the party by whom such affidavit was filed.” Section 24 stated:-

18. These powers would appear to have moved to the Superior Courts Rules Making Committee . Order 70 of the Rules at Part IX deals with medical inspection. The power of appointment of the medical inspector in a nullity suit arises under Order 70 Rule 32. The rules are specific and set out an exact procedure to be followed by a medical inspector subsequent to his appointment by the Master. There is no provision in the rules for interviewing any person other than the parties to the action. In fact it is clear that the wording of Rule 32 is such that it was a physical examination of the parties which was envisaged. The forms in Appendix L, the Form No.8 Certificate of Identification, clearly envisage a physical examination of the parts and organs of generation; and likewise Form No. 9, the Oath of the medical inspectors, refers to an examination of the parts and organs of generation and to a report in writing as to whether the party is capable of performing the act of generation and whether such incapacity can be relieved or removed by art or skill and whether the party has or has not any impediment to prevent the consummation of marriage. These rules and forms are in Statutory Instrument No. 15 of 1986. In recent years the practice has been for the Registrar to amend the forms to take cognisance of the developments in respect of the appointment of Consultant Psychiatrists as medical inspectors.

19. While the application is made for directions by the parties, the underlying reality is that Dr. Byrne seeks guidance in the performance of his duty as the duly appointed medical inspector. Counsel has drawn attention to Order 114 of the Rules which is to the effect that when an officer attached to any Court is engaged in duties relating to business of that Court which is for the time being required by law to be transacted by or before or under or pursuant to the order of a Judge of that Court, he shall observe and obey all directions given to him by such Judge. Dr. Byrne has made it clear that his wish is to comply scrupulously with the order of the Court. At the same time he has pointed out that his expert assessment will be less complete and satisfactory from his point of view as a medical expert unless he interviews third-party informants as would often be usual in making a clinical diagnosis where personality disorder is suggested. Whilst I acknowledge the force of the points made about the desirability of having a report from the medical inspector which is based on his having pursued all avenues of diagnostic inquiry which seem appropriate to him with his expert experience, nevertheless there are legal and practical problems obviating this. First, it is manifest that the wording of the provisions of the statute and of the rules envisage an inspection of the parties themselves and not an examination of third-party informants. The cases CD -v- ED (unreported), Henchy J. delivered on 21st June, 1971, and JS -v- CS [ 1997] 2 IR 506 might be regarded as already having stretched to its elastic limit the extension of the law to cover the appointment of a psychiatrist rather than a gynaecologist or urologist to inspect the parties on behalf of the Court. It is manifest that it would stretch the elasticity beyond breaking point to extend matters to include interviewing third-party informants and this would be in breach not only of the letter but also of the spirit of the wording of the statute and of the rules. A further cogent point militating against any extension of the scope of interviews to be conducted by the medical inspector beyond the parties themselves lies in the novelty of the suggestion that third-party informants should be interviewed. The Respondent attended two interviews with the medical inspector in August 1997. From the Petitioner’s Affidavit it would appear that the suggestion that the medical Inspector should interview third-party informants arose during or after the interviews between the Inspector and the Petitioner in September 1997. It is clear from the wording of the Master’s Order that the Inspector was appointed on the basis that he would examine the Petitioner and the Respondent and with no mention whatsoever of interviews with third-party informants either having been referred to in the Master’s Order or during the interviews with the Respondent in August 1997. It seems that the Respondent was taken aback at the suggestion that the medical inspector was contemplating interviews with third-party informants. In the circumstances one must be sympathetic to the proposition made on behalf of the Respondent that she gave an interview with Dr. Byrne on the understanding that he would report on her and the Petitioner on the basis of interviews with them and without his views, in her perception at least, being contaminated by third-party informants, whom she apprehends may be partisan as friends or family of the Petitioner.

20. If the Inspector’s report is confined to his assessment on the basis of his interviews with the parties then, while it is subject to the limitations pointed out by Dr. Byrne, nevertheless the confined ambit has the advantage that it does not range wide to extraneous matters and persons. For example, there is the peril that if a third-party informant is interviewed by the psychiatrist then at the Court hearing, the information given by this person may be challenged on the grounds that it is tainted by collusion or falsity. If the third-party is called as a witness then the Court may accept or reject the evidence. However, neither party may call the third-party or the third-party may have become unavailable since the interview with the psychiatrist. If the third-party is not called, or if the evidence of the third-party is rejected by the Court when called, then the Court may be put in the position of having to extrapolate the tainted parts of the Inspector’s evidence. In a nullity case the Court cannot abdicate its responsibility for assessing the witnesses. When it comes to deciding the issues confronting the Court then the buck firmly lands on the desk of the Court and cannot be shifted to the inspector, however experienced and respected the medical inspector may be. I reiterate the robust assertion of the judge’s role made by Murphy J. in KWT -v- DAT [1992] 2 IR 11 at page 21 when he said:-

“It is only in more recent time that the nature and substance of the matrimonial relationship has been more fully explored to establish and identify factors which have been at all times essential ingredients in that very special relationship. As the cases cited indicate much of this analysis has been carried out by psychiatrists, psychologists and social workers. It follows that their evidence is of paramount importance in dealing with cases of this nature. However at the end of the day it seems to me that I cannot abdicate my function to the experts, however distinguished, and even though they are, in the present case, in agreement on the point that the parties to the marriage did not have an adequate emotional capacity to sustain the relationship of marriage. The fact that the marriage at least in its outward form survived for such a lengthy period without apparent discord or obvious mental distress suggests that an adequate if less than satisfactory relationship was achieved. I am also struck by the fact that it appears from the report of Dr. B that the respondent did achieve emotional maturity eventually though apparently subsequent to the stage at which the marriage had, in his view, irretrievably broken down. Again it seems to me that that evidence makes it clear that the emotional inadequacy of the respondent was not irreversible and to that extent presumably it was possible that their combined problems could have been resolved or ameliorated if during their lives together some event occurred which resulted in one or both of the parties obtaining the requisite advice and assistance at an earlier date.”

How was the Court to decide what these phrases mean in the context of any particular case? Not certainly by reference to the evidence of psychiatrists; they can, of course, assist the court as to the nature and extent of any mental illness suffered by a spouse, but it is the responsibility of the courts alone and not of psychiatrists, however eminent, to determine whether a decree of nullity should be granted. Consequently, it must be for Judges alone to decide whether, in any particular case, a ‘caring or...considerate relationship’ or ‘a normal inter-personal relationship’ was incapable of being achieved or (perhaps even more difficult to measure) once achieved, sustained through all the various hazards of the matrimonial state. A greater contrast could not be imagined to the grounds permitted by the existing law. These judgments undoubtedly constitute a development of the existing law, but it is a development which consists in the addition of a new ground of nullity not hither-to recognised by the courts, which the legislature has refrained from providing for and which is wholly different in nature and in its susceptibility to legal proof from the existing ground of impotence.”

23. Accordingly I have come to the conclusion that the Medical Inspector in the present case should operate within the terms of the Order of the Master and should interview the parties and report without moving into the contentious areas of interviewing third-party informants. This has the advantage that he is operating within clear parameters set by the order of the Court and will thereby retain the confidence of both parties. Furthermore this should reduce the sources of conflict between a party and the psychiatrist. This also avoids the inspector being put into the difficult role of having to decide which third-party informants to interview if any. Hopefully it will also avoid the difficulty caused by one of the parties orchestrating third-party informants in an unscrupulous way and producing third parties who have ulterior motives and partisan bias. This restricted inspection on the part of the psychiatrist ensures that the Court remains in control of the inquiry.

24. If the Medical Inspector interviews third-party informants there is the peril that the third-party witness may not turn up at the hearing or may be exposed as a charlatan on cross examination. The report based on the psychiatrist’s expertise and interviews only with the parties avoids the problem of the Court having to work out how much of the inspector’s report is based on what the inspector heard from a witness whose evidence the Court has not heard or whose evidence the Court has rejected as false. The Court avoids being put in the position of having to try to unscramble an omelette in respect of which two of the four eggs have turned out to be bad. There are very real problems in reality about a Court having to extrapolate sound parts of an Inspector’s report which have not been tainted by hearsay or evidence which has been rejected. A further consideration is that the Court is seen to be in control of the proceedings and that justice is seen to be done and the perils from hearsay and loss of confidence on the part of the parties in the conduct of the proceedings from an expanded role of the medical inspector. By adopting this procedure in the present case the Court asserts that the ultimate assessment of witnesses and of the parties is going to be made by the Court. It is safer for the Court to stick to the ordinary rules of evidence as suggested under Section 8 of the 1870 Act on the lines that evidence should be given viva voce in Court. If the inspector has based part of his assessment on contaminated evidence then this is going to cause problems in the future when his report is considered by the Court and there may be real difficulties in unscrambling the part of the omelette which has been contaminated by hearsay or false and rejected evidence.

25. It is clear that the Matrimonial Causes and Marriage Law (Ireland) Amendments Acts, 1870 and 1871 envisaged sworn evidence being heard viva voce in Court. While there is provision for evidence to be given on Affidavit or on commission nevertheless the theme is that witnesses should be sworn and examined orally. Indeed Section 6 of the 1871 Act gives the Court powers and authority to enforce the attendance of persons required by it. Section 19 of the 1871 Act makes any person who shall wittingly give false evidence liable to the penalties for wilful and corrupt perjury. In the old Ecclesiastical Courts a party who had not a personal interest in the suit was never allowed to intervene. This is apparent from the case of Ex parte Verax, in re Chaddock -v- Chaddock XXIX Law Journal 1860, Probate Magistrates Cases decided on 28th January, 1860 where a person not having a personal and private interest in a suit for dissolution of marriage cannot be made a party to such suit for the purpose of communicating to the Court by placing on the record matter which might legitimately be inquired into by the Court, mero motu, and irrespective of the pleadings between the parties, and which if proved would legitimately influence their judgment, whether such matter constitutes an absolute bar to the prayer of the petition or enable the Court to exercise its discretion thereon. It seems that the Court has no power to admit any other parties to appear in a suit for dissolution of marriage than those pointed out by the 27th and 28th Sections of the 20 and 21 Vict. C. 85. On 20th January, 1860 the same Court composed of the Judge Ordinary, Hill J. and Keating J. in Y -v- Y refused to allow the intervention by a third-party who, although he had no legal private interest, prayed to be allowed to intervene at the hearing to prove that the wife had herself been guilty of adultery. While these cases were under different statutes and not in Ireland they do illustrate that the courts have always been reluctant to allow persons who are not parties to an action to intervene. If a third-party informant has information which is of assistance to the Court then that person can be called as a witness at the hearing before the Court. Indeed it is not infrequent that a psychiatrist, either as the inspector appointed by the Court or as an expert witness engaged by one of the parties, may with the permission of the Court sit through the evidence being given by a number of witnesses in the nullity proceedings. In this way both the consultant psychiatrist and the Court witness the demeanour and hear the evidence of the witnesses. Of course, neither Counsel nor the Judge may ask the witness the questions which the psychiatrist would have asked and the environment and atmosphere may not be as appropriate as the psychiatrist would wish. Nevertheless there may be advantages of expedition and lack of duplication and the consultant psychiatrist can be asked if what he has seen and heard in Court casts a new light on the subject matter of his inquiry. I should add that, unlike in Chaddock -v- Chaddock and Y -v- Y, there was no question in the present case of there being any intervention by a third-party, however the cases are illustrative of the courts being chary of widening of the scope of the enquiry and of intermeddling by persons who may be partisan and who are not actually called to give evidence by one of the parties before the Court.

27. There is a proviso to add to the conclusion that the medical inspector is confined to interviewing the parties. While this is the general rule under the Matrimonial Causes (Ireland) Acts of 1870 and 1871 and under Order 70 Rule 32, nevertheless it may well be that if both parties were to consent to the medical inspector interviewing third-party informants, then the Court in the particular circumstances of the case might sanction such an interview. The case of Thompson -v-Thompson reported in the Solicitors' Journal of 3rd February, 1961, Volume 105 reinforces the need for the medical inspector to preserve his role as a non partisan officer of the Court who communicates with the parties representatives only through the Court. In the Thompson case the husband petitioned for annulment of marriage on the ground of his wife's wilful refusal to consummate it and the wife by her answer said that the marriage had been consummated. A medical inspector was appointed to examine the parties and his report did not conflict with the wife's case in her Answer. However, at the hearing of the petition in April 1960 the inspector gave evidence which supported the husband’s case and the marriage was annulled. The wife applied for a fresh medical examination and this produced a report contradicting the evidence given by the medical inspector at the trial. The husband’s solicitors then informed the wife’s solicitors that they had written to the medical inspector and had also spoken to him. The Court of Appeal rescinded the annulment as there had been a communication other than through the Court with the non partisan medical inspector without notice to the other side and this gave the impression that something untoward had occurred.

29. The Family Law Act, 1995 was enacted on 2nd October, 1995. Section 38 gives the Circuit Court, concurrently with the High Court, jurisdiction to hear and determine proceedings under the Act and gives the Circuit Family Court a concurrent jurisdiction with the High Court to hear and determine proceedings for a decree of nullity. Section 47 gives the Court power of its own motion, or on the application put in that behalf by a party to the proceedings, to give such directions as it thinks proper for the purpose of procuring a report in writing on any question affecting the welfare of a party to the proceedings or any other person to whom they relate from such Probation and Welfare Officer as the Minister for Justice may nominate or by such person nominated by the Health Board or any other persons specified in the order. Subsection 6 makes it clear that Subsection 1 applies, inter alia, in relation to an application for a decree of nullity. While the heading in the margin is entitled “Social Reports and Family Law Proceedings” this may be misleading as the Court is clearly given wide discretion as to who should be appointed to prepare the report. I understand from Counsel that the section is used in the Circuit Court for the appointment of psychiatrists to prepare a report for the assistance of the Court. Alan Shatter in the fourth edition of his “Family Law” in 1997 at page 215 wrote:-

“Section 47 of the Family Law Act, 1995 can be regarded as conferring an express statutory power on the courts to order the provision of medical reports in nullity cases generally and as applying to proceedings granted on an allegation of impotence. It should, however, be noted that whilst the section confers a broad discretion on the Court “by order to give such direction as it thinks fit for the purpose of procuring a report in writing on any question affecting the welfare of a party to the proceedings” , such reports are referred to as “Social Reports” in the side heading to the section. Moreover, the section confers no express power on the court to order that a party to nullity proceedings be medically examined, although the section is said expressly to apply to nullity applications. No Court in a written judgment has yet considered the relevance of S.47 to nullity proceedings in which a decree is sought on the ground of impotence or on any other ground”.

30. The medical inspector was duly appointed by the Master of the High Court on 14th May, 1997 with the order being in the traditional format as it has evolved to cover psychiatric examination and report. There is no suggestion that Section 47 of the 1995 Family Law Act was in the contemplation of either of the parties or of the Master. I do not think that the making of the order under Order 70 Rule 30 precludes the Court from making a further order under Section 47 of the Family Law Act, 1995 although the Court would probably deprecate any duplication and incurring of further costs. However, if there is to be an appointment of a medical inspector under the provisions of Section 47 then clearly this must be done by way of motion and affidavit on notice to the other party. The wording of Section 47 is succinct and perhaps cryptic. It is preferable that the Court should not anticipate the arguments which may be made on such a motion brought under Section 47. However, since directions have been sought by the parties and the medical inspector wishes to have guidance, it may be helpful if I set out a few preliminary thoughts on the matter subject to the stern proviso that they are only tentative and anticipatory and accordingly may prove to be insecure guidelines. With some trepidation I suggest that the inclusion of nullity by the Oireachtas in Section 47 was intended to give wide scope and discretion to the Court in giving directions to the person directed to prepare the report. It is likely that such person will be an expert and accordingly the expert’s evidence and the contents of the report will be subject to all the usual rules of evidence. What befell the evidence of the psychiatrist in RT -v- VP [1990] 1 IR 545 is a salutary lesson. At page 551 Lardner J. said:-

31. The lesson to be learned from these cases is that if objection to evidence is correctly taken on the grounds of hearsay, then unless it fits into one of the exceptions to the hearsay rule, then the evidence is likely to be excluded as inadmissible. The facts upon which an expert’s evidence is based must be proved by admissible evidence (per Lawton L.J. in R -v- Turner [1975] QB 834 at p. 840). In other words, if an expert relies on the existence of some fact basic to the issue on which he expresses his opinion, that fact must be proved. In many cases an expert will have no personal knowledge of the facts upon which his opinion is based. In such a case, the expert should state the hypothetical facts on which he has based his opinion. It is often convenient that the facts of the case are proved by other witnesses and then the expert can express his views on the basis of admitted or proven evidence. In some instances where the expert has personal knowledge of the facts, for example where he had visited the scene of an accident or examined an exhibit, he is in a position to give evidence as to both fact and opinion. In R -v- Turner Lawton L. J. warned that if the expert had been misinformed about the facts or had taken irrelevant facts into consideration or had omitted to consider relevant ones, in cases in which there is doubt as to what the real factual issues are until factual evidence has been all given, it may be sensible to postpone expert evidence until all the factual evidence has been given. An expert may not prove facts upon which his opinion is based unless he has personal knowledge of them because this would be a breach of the rule against hearsay, but nevertheless he is entitled to rely upon such facts as a part of the process of forming an opinion and in this respect, is not subject to the rule against hearsay in the same way as a witness of fact who is not an expert. This distinction was explained by Megarry J. in English Exporters (London) Limited -v- Eldonwall Limited [1973] 1 Ch 415. At p. 421 Megarry J. said:-

That being so, it seems to me quite another matter when it is asserted that a valuer may give factual evidence of transactions of which he has no direct knowledge, whether per se or whether in the guise of giving reasons for his opinion as to value. It is one thing to say “From my general experience of recent transactions comparable with this one, I think the proper rent should be £x": it is another to say "Because I have been told by someone else that the premises next door have an area of x square feet and were recently let on such-and-such terms for £y a year, I say the rent of these premises should be £z a year". What he has been told about the premises next door may be inaccurate or misleading as to the area, the rent, the terms and much else besides. It makes it no better when the witness expresses his confidence in the reliability of a source of information: a transparently honest and careful witness cannot make information reliable if, instead of speaking of what he has seen and heard for himself, he is merely retailing what others have told him. The other party to the litigation is entitled to have a witness whom he can cross examine on oath as to the reliability of the facts deposed to, and not merely as to the witness's opinion as to the reliability of information which was given as to him not on oath, and possibly in circumstances tending to inaccuracies and slips. Further, it is often difficult enough for the courts to ascertain the true facts from witnesses giving direct evidence, without the added complication of attempts to evaluate a witness's opinion of the reliability, care and thoroughness of some informant who has supplied the witness with the facts that he is seeking to recount.

It therefore seems to me that details of comparable transactions upon which a valuer intends to rely in his evidence must, if they are to be put before the court, be confined to those details which have been, or will be, proved by admissible evidence, given either by the valuer himself or in some other way. I know of no special rule giving expert valuation witnesses the right to give hearsay evidence of facts: and notwithstanding many pleasant days spent in the Lands Tribunal while I was at the Bar, I can see no compelling reasons of policy why they should be able to do so. Of course, the long established technique in adducing expert evidence of asking hypothetical questions may also be employed for valuers. It would, I think, be perfectly proper to ask a valuer "If in May 1972 No. 3, with an area of 2,000 sq. ft., was let for £10,000 a year for seven years on a full repairing lease with no unusual terms, what rent would be appropriate for the premises in dispute?" But I cannot see that it would do much good unless the facts of the hypothesis are established by admissible evidence; and the valuer's statement that someone reputable had told him these facts, or that he had seen them in a reputable periodical, would not in my judgment constitute admissible evidence".

32. It may be salutary to note that in Jude Mapp -v- Gilhooley [1991] 2 IR 253 the Supreme Court asserted that it was a fundamental principle of the common law that for the purpose of civil and criminal trials viva voce evidence should be given on oath or affirmation. There were no statutory exceptions to this general principle for trials in civil cases. The Plaintiff had been five years old when he was injured while playing a game of trains in the school playground. He was eight at the date of trial and told the trial judge that he did not understand the meaning of an oath. He was permitted to give unsworn evidence. No objection was raised by the Defendant. At page 264 McCarthy J. said:-

"The general rule in all civil and criminal proceedings is that the oral or written evidence of any witness must be sworn. This rule developed from the principle that only those who are prepared to testify on oath on the gospel were competent witnesses. Statutory exceptions have been made to this principle but it remains the general law that oral evidence may only be given on oath. ... In the course of trial, many facts are admitted without formal proof - the contents of medical reports, statements to the gardai, engineers’ reports, estimates of costs of different kinds and so on. This is not in any sense the giving of evidence; it is a convenient method of avoiding giving evidence by asking the particular tribunal to determine the issues between the parties upon facts that are agreed, although these facts may have to be supplemented by findings of fact made upon sworn evidence. Where there is a contest of fact, it can be resolved in one way, and in one way only, upon a resolution by the tribunal of fact of the issue raised by the witnesses. The resolution may be either of primary or secondary fact but it can only be done upon sworn testimony."

36. Counsel for the Respondent suggested that Section 47 was in the nature of a graft onto the former procedure for the appointment of a medical inspector. Curiously, there is no cross reference to the Matrimonial Causes and Marriage Law (Ireland) Amendment Acts, 1870 and 1871 in Section 47 nor any linkage to Section 13 of the 1870 Act which provided that the Court was to act on the principles of the Ecclesiastical Courts. It seems clear that this is a new and distinct provision in Section 47 and that the procedure by way of motion is much simpler and considerably less elaborate and constrained than the conventional mode of appointment of an inspector under Order 70 Rule 32. Incidentally, Statutory Instrument No. 84 of 1997 which came into operation on 27th February, 1997 provides by Order 78 Rule 24 of the Circuit Court Rules for interim and interlocutory applications. At Rule 24(d) provision is made for applications for the appointment of medical and/or psychiatric inspectors in respect of the Applicant and/or the Respondent and for applications to be made on motion on notice to the other party. Procedures are laid down for the purpose of the identification of the parties to the County Registrar or his/her nominee and no inspection should be carried out unless the procedures contained in the rule are satisfied. The contents of this Statutory Instrument contradicts the suggestion that Section 47 does not contemplate the appointment of a person to report in a similar way as a medical inspector.

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McG. (P.) v. F. (A.) [2000] IEHC 11 (28th January, 2000) URL: http://www.bailii.org/ie/cases/IEHC/2000/11.html Cite as: [2000] IEHC 11

High Court of Ireland Decisions

McG. (P.) v. F. (A.) [2000] IEHC 11 (28th January, 2000)