2009 70 M
BETWEEN
M.
APPLICANT
AND
M.
RESPONDENT
DECISION of the MASTER OF THE HIGH COURT delivered on the 19 th day of October, 2011
This application for discovery is casual to the point of irresponsibility. After all, a request for discovery is the first step in a process which could lead to the jailing of a respondent who does not comply, and the Court should never be used to oppress.
What gives the game away is the fact that the applicant’s solicitor seeks, at category (vi), “ all documents in respect of Swiss trust fund held by respondent . . . to ascertain the funds available in this fund”, and also, at category (xvii)
, “all documentation to vouch holding in Park Trust . . . to ascertain ownership and financial position in respect of this shareholding ” when it is abundantly clear that the
Swiss Trust is the Park Trust. This solicitor has clearly rattled off into his Dictaphone thirty-one categories of documents without giving any of them a second thought, or weighing the respondent’s sworn testimony in respect of each.
The solicitor swears that the discovery is “ necessary in that it is essential to the proceedings herein that the full extent of the Respondent’s holdings be placed before
( sic ) this Honourable Court to ensure a fair distribution
”.
If the respondent has already “come clean” on his circumstances, can any solicitor assert that documentary discovery is “really or genuinely” needed?

2
In Ryanair v. Aer Rianta [2003], the Supreme Court directed that discovery be ordered only when the documents were “really needed”. The following year, in
Taylor v. Clonmel Healthcare
, the Court spoke of documents which are “genuinely necessary”.
Is there any evidence to suggest that, to date, the respondent has not “come clean”?
I note, in passing, that the respondent has stated his weekly outgoings to be
€407.50, of which €325 is for the mortgage on the Malaga property. No husband who is intent on minimising his wife’s share of the available monies would openly concede that his own needs were so modest. This is evidence of honesty, not duplicity.
Nor is there any evidence to suggest that his lifestyle is at variance with such an expense figure. He lives at home: if his wife instructed otherwise, her solicitor should have mentioned it. The respondent states that he is accepting a weekly loan from his sister, and that is not disputed, or the subject of a discovery request.
I pointed out in my written decision F.D. v. P.J.D
., 28 th
July, 2004, that discovery in matrimonial proceedings is really further and better discovery in respect of evidence already furnished in the party’s affidavit of means, as vouched. I noted that the UK Divorce Registry Form D270, ‘Notice to Solicitors’, includes the following exhortation:
‘
No further affidavit will normally be necessary unless it (a) deals with a serious allegation made by the other party, or (b) sets out a change of circumstance’ .”
In that same decision, I said, that, “ there ought to be fairly clear evidence that a party may have concealed a materially significant portion of income or wealth if the
Court is to be persuaded to grant a further and better discovery order
”. I dismissed

3 the application in that case because “ the request for discovery is promoted out of a desire for completeness rather than to uncover any deliberate falsehood or disingenuousness on the husband’s part ”.
I also quoted Booth J. who said, in Evans v. Evans [1990] 1 W.L.R. 575:
“
While it is necessary for the legal advisers to have sufficient knowledge of the financial situation of both parties before advising their client on a proposed settlement, the necessity to make further inquiries must always be balanced by a consideration of what they are realistically likely to achieve and the increased costs which are likely to be incurred in making them
.”
So, where are we in this case? The wife holds the unencumbered 135-acre farm and stud in her sole name. The husband’s shareholdings in companies which own (or once owned) pubs in the UK and in Ireland are worthless because of negative equity, and he is personal guarantor on many of their corporate loans. The properties -
Malaga and Gibraltar - have been disclosed, as have the mortgages secured on them.
The Swiss trust holds shares in public house companies which are no longer trading.
He owes AIB €900,000. He owes Butterfield Bank €500,000. He owes his son
€66,000. Need I go on?
It is clearly relevant to consideration of the applicant’s application for discovery to note that nowhere is the content of the respondent’s affidavit of means contested.
The solicitor does not accuse the respondent of lying.
For this couple, in their late sixties, the destruction of a forty-year marriage must be traumatic. It is incumbent on a solicitor, as an officer of the Court, not to squander the remaining assets in pointless discovery applications. I have no doubt but that the

4 applicant’s case can be fully and fairly assessed with the information currently to hand.
I can only find one matter in respect of which the applicant’s inquiries appear legitimate. In her grounding affidavit, the applicant speaks of an “ offshore account from which he derives a handsome income
” [par. 9(b)]. The husband appears not to have addressed that allegation.
The applicant now seeks, at category 7, “ all documentation relating to all Bank
Accounts, Building Society accounts, Credit Union accounts and any other financial records/accounts including statements in respect of each such financial/record for a period of five years from the date hereof
”.
This category was clearly not drafted with any attempt at precision or focus. I will order discovery of statements of such accounts over a period of four years, two before and two after the commencement of proceedings, that is, for the calendar years
1998 to 2001 inclusive.
No other discovery is really or genuinely needed.
Edmund Honohan
19 th October, 2011