Court of Appeal Clarifies Position re Release of In-Camera Documents
As a general rule, parties involved in in-camera (usually involving family law) proceedings cannot provide copies of any of the documentation or discuss the details in relation to the case with third parties who are not involved in the litigation.
There are however certain exceptions to this which are contained in s.40(6), (7) and (8) of the Civil Liability Act 2004.
A recent decision of the Court of Appeal in the case AX v BX clarified the circumstances in which the documentation can be provided.
In this particular case, the husband, who appeared to be unrepresented, had made a compliant about the wife’s solicitors to the Law Society and the LSRA. The husband provided a copy of an unredacted version of the judgement of the High Court to the Solicitor’s Disciplinary Tribunal and also to the LSRA. The wife had no difficulty with the copy being provided to the Solicitor’s Disciplinary Tribunal but it objected to same being provided to the LSRA, and she also wanted permission to disclose a copy of the judgement to her Solicitors’ PI insurers.
In the High Court, Judge Barrett held that such disclosure of in camera documentation was impermissible without the leave of the Court. Mr X argued that the leave of the Court was not required in relation to documentation provided pursuant to s.40(6) and (7) of the Civil Liability Act 2004.
The Court of Appeal held that s.40 (6) and (7) allowed disclosure of in camera documentation to certain bodies for specified purposes, i.e. in relation to where there is a hearing, enquiry or investigation, or for the purpose of giving evidence.
On the other hand, s.40 (8) allows the Court to direct a party to disclose in camera documentation in order to protect the legitimate interests of a party or other parties affected by the proceedings- i.e. the Court’s leave is required for a release pursuant to s.40 (8) but not for the purposes required for in s.40 (6) and (7).
The Court of Appeal referred to a recent decision of Judge Nuala Butler when she was in the High Court where she stated that s.40 established two different pathways through which in camera material might become available and be used outside the parameters of the case in which it originated. The Court of Appeal agreed with Judge Butler’s analysis.
The Court of Appeal allowed Ms X’s solicitors to send the copy of the judgment to their PI insurers, which fell with in the definition of protecting their ‘legitimate interests’.
It held that the husband’s decision to provide the documentation to the Solicitors Disciplinary Tribunal/LRSA was permitted under s.40(6) and (7).
This is a helpful and useful clarification of the circumstances in which in-camera documentation can be provided, in certain circumstances, to certain parties.
For any advice or information on any family law related matter, please do not hesitate to contact Brendan Dillon, Erika Coughlan or Aoife Cathcart on 01 2960666.
