Judgment: 2012-04-25 · Court archive

High Court declares exclusion of support person unlawful but leaves property sale for appeal

The court found the refusal to admit the applicant’s friend breached statutory and constitutional protections, but said it did not invalidate the separation decree. It declined to quash the order for selling the family home and adjacent lodge while a full appeal remained pending.

High Court · [2012] IEHC 175

Who, what, where, when and why

Who

See the report below for the parties involved.

What

The court found the refusal to admit the applicant’s friend breached statutory and constitutional protections, but said it did not invalidate the separation decree. It declined to quash the order for selling the family home and adjacent lodge while a full appeal remained pending.

Where

Places mentioned in the report

  • Z House
  • Y Lodge
When

Judgment:

Other dates in the report
  • 8 June 2011

    In a judgment delivered on 25 April 2012, Mr Justice Hogan considered the man’s challenge to a decree of judicial separation granted on 8 June 2011. The decree was based on a finding that a normal marital relationship had not existed for at least a year. The man had also appealed the Circuit Court decision to the High Court, with that appeal stayed pending the judicial review.

Why

Reasons reported in the judgment

In a judgment delivered on 25 April 2012, Mr Justice Hogan considered the man’s challenge to a decree of judicial separation granted on 8 June 2011. The decree was based on a finding that a normal marital relationship had not existed for at least a year. The man had also appealed the Circuit Court decision to the High Court, with that appeal stayed pending the judicial review.

The High Court declared that a Circuit Court judge acted unlawfully by refusing to let a man’s friend accompany him during judicial separation proceedings, but said the exclusion did not affect the validity of the separation decree. It declined to quash an order providing for the sale of the family home and an adjacent lodge, leaving that dispute for a pending appeal.

In a judgment delivered on 25 April 2012, Mr Justice Hogan considered the man’s challenge to a decree of judicial separation granted on 8 June 2011. The decree was based on a finding that a normal marital relationship had not existed for at least a year. The man had also appealed the Circuit Court decision to the High Court, with that appeal stayed pending the judicial review.

The man, identified in the judgment as Mr X, had been treated for laryngeal cancer and had undergone a laryngectomy. The judge said he could speak with considerable difficulty and tired easily. Mr X argued that his friend, Ms S, was needed to assist him, including by helping communicate instructions to his legal team. The Circuit Court had excluded her because he was legally represented.

Justice Hogan held that legal representation alone was not a sufficient reason to refuse the request under section 40(5) of the Civil Liability and Courts Act 2004, which permits a party to be accompanied in court by another person, subject to the court’s approval and directions. Given Mr X’s disability and reliance on Ms S, the judge also found that excluding her breached the constitutional guarantee of equality before the law. He granted a declaration that the exclusion was ultra vires section 40(5), while noting that Mr X had accepted it did not itself make the hearing unfair or render the separation order invalid.

The court rejected Mr X’s objection to the presence of Ms Y’s sister, Ms T, for the parts of the hearing concerning her interests in the lodge. Ms T and Ms Y were its registered owners. The judge held that the law allowed her presence to protect her legitimate property interests and ensure fair procedures.

The Circuit Court order provided for the sale of the family home, identified as Z House, together with Y Lodge, in one or two lots. It also directed each spouse to pay €1,500 toward marketing costs. The High Court observed that the statutory precondition for ordering the sale of property beyond the family home—a prior secured periodic payments, lump sum or property adjustment order—did not appear to have been met.

Justice Hogan nevertheless refused to quash the sale order at the judicial review stage. He considered the issue suitable for the pending full rehearing on appeal, where the court could assess the relevant evidence and whether the properties should be sold separately. The judgment expressed no view on the merits of how the sale issue should ultimately be decided.

Read the original court judgment

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