High Court allows wife to adduce oral evidence from settlement counsel and accountant on appeal.

THE HIGH COURT

FAMILY LAW

[2025] IEHC 377

RECORD NO. 2025 35 CAF

IN THE MATTER OF THE JUDICIAL SEPERATION AND FAMILY LAW

REFORM ACT 1989, AND IN THE MATTER OF THE FAMILY LAW ACT

1995, AND IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT 1996,

AS AMENDED

BETWEEN

S

APPLICANT/RESPONDENT

-AND-

E

RESPONDENT/APPELLANT

JUDGMENT of Mr. Justice Jordan delivered on the 26th day of June 2025.

1. On 27 March 2025 the Circuit Court heard a motion filed on 21 January 2025 on behalf of the wife for judgment in her favour arising out of what she asserted was her husband’s failure to comply with a consent order made in May 2022 in family law proceedings. The Circuit Court made an order re-entering the proceedings but, having heard the evidence and the submissions of counsel, proceeded to refuse the reliefs sought in the notice of motion. The wife has appealed from the Circuit Court decision and in particular the refusal of the reliefs sought.

2. The original motion dated 21 January 2025 was grounded on an affidavit of the wife. There was a replying affidavit of the husband and there was then a supplemental affidavit of the wife.

3. Thus, the motion was dealt with in the Circuit Court on the basis of the above affidavit evidence. Preparation for the appeal hearing.

4. The appellant (wife) filed a motion in the High Court on 13 June 2025 seeking; - “(1) An order pursuant to s.37(2) of the Courts of Justice Act, 1936 as amended, granting the respondent/appellant leave to call such oral evidence as may be necessary in support of her application by way of motion under appeal which was filed in the Circuit Court on 21 January, 2025 and decided on 27 March, 2025.

(2) Such further and/or other orders as this honourable Court shall deem fit and meet.

(3) Costs.”

5. This motion is grounded on the affidavit of Ms M (Solicitor).

6. A replying affidavit was filed by Ms D (Solicitor) on behalf of the respondent (husband).

7. Position papers were exchanged by the husband and wife dated 10 June 2025 and 12 June 2025, respectively.

8. Section 37 of the Courts of Justice Act, 1936 provides; -

“37.—(1) An appeal shall lie to the High Court sitting in Dublin from every judgment given or order made (other than judgments and orders in respect of which it is declared by this Part of this Act that no appeal shall lie therefrom) by the Circuit Court in any civil action or matter at the hearing or for the determination of which no oral evidence was given.

(2) Every appeal under this section to the High Court shall be heard and determined by one judge of the High Court sitting in Dublin and shall be so heard by way of rehearing of the action or matter in which the judgment or order the subject of such appeal was given or made, but no evidence which was not given and received in the Circuit Court shall be given or received on the hearing of such appeal without the special leave of the judge hearing such appeal.”

9. Thus, insofar as this appeal hearing is concerned s.37(1) governs the procedure as it is an appeal from the Circuit Court in respect of a civil matter at the hearing of which no oral evidence was given. Under s.37(2) the appeal involves a rehearing of the matter under appeal and evidence which was not given and received in the Circuit Court is not permissible on the hearing of this appeal without special leave of the judge hearing the appeal.

10. Order 61 Rule 8 of the Rules of the Superior Courts provides ; - “Where any party desires to submit fresh evidence upon the hearing of an appeal in any action or matter at the hearing or for the determination of which no oral evidence was given, he shall serve and lodge an affidavit setting out the nature of the evidence and the reasons why it was not submitted to the Circuit Court. Any party on whom such affidavit has been served shall be entitled to serve and lodge an answering affidavit or to apply to the Court on the hearing of the appeal for leave to submit such evidence, oral or otherwise, as may be necessary for the purpose of answering such fresh evidence, provided, however, that the Court may at any time admit fresh evidence, oral or otherwise on such terms as the Court shall think fit, and may order the attendance for cross-examination of the deponent in any affidavit used in the Circuit Court or the High Court.”

11. The court has been referred to its judgment in the case of L.D. v N.D. [2020] IEHC 267 delivered on 27 February 2020. That judgment can be distinguished in circumstances where the appeal in question was an appeal governed by s.38 of the Courts of Justice Act, 1936 as the appeal concerned a judgment given in the Circuit Court in an action where oral evidence was heard.

12. The court has also been referred by counsel for the husband to the decision of Haugh J in Fitzpatrick v Powell [1946] IR 32. That case can also be distinguished in circumstances where it was an appeal against a Circuit Court Order dismissing a Civil Bill with costs against the plaintiff. This occurred as neither the plaintiff nor any person representing her was present in court when the case was called on for hearing. Thus, there was no evidence whatsoever heard or received in the Circuit Court – no affidavit evidence and no oral evidence. It is worth quoting an extract from the short judgment of Haugh J – at p.33; - “What is my jurisdiction here? Am I to hear a case by way of appeal in which, in the court below, not only was no evidence given, but even the pleadings were not opened? Would I be functioning as a Court of Appeal if I were to do so? Again, since no oral evidence was given the appeal is brought under s.37 of the Courts of Justice Act, 1936, and no fresh evidence can be introduced in such an appeal except with the special leave of the judge hearing the appeal. Should I give such leave? In my opinion the power to admit fresh evidence is intended to be used only for the purpose of clearing up matters of doubt which may have been left unanswered by the evidence in the Circuit Court. It is not intended to enable the High Court to admit evidence for the first time when none was given in the Court below (emphasis added). The Circuit Court Judge's order appears to have been correct in the circumstances. Can I make this Court what in substance would be a court of first instance, and hear a case which in truth was not heard in the Circuit Court? (emphasis added). I do not think so. I consider that my duty is to review the judgment of the court below by means of a re-hearing. If I were to accede to the plaintiff's application here this appeal would in effect be a first hearing and not a re-hearing. In my opinion, a respondent in an appeal from the Circuit Court to the High Court is entitled to know, at the opening of the appeal, what evidence the appellant may be expected to produce, save, of course, for such fresh evidence, if any, as may be permitted to be given. In a case such as the present the respondent would be entirely deprived of this advantage if the course proposed by the plaintiff were to be adopted. In the circumstances I must decline to hear this appeal, and the order of the Circuit Court will stand.”

13. Insofar as the above decision is concerned, it is worth making the following points; -

(a) In the Fitzpatrick case it is the position that no evidence was given and the pleadings were not opened. That is in contrast to the situation here where the application was heard and dealt with - the evidence was on affidavit and there were submissions of counsel for both parties.

(b) There can be little argument with what Haugh J said about s.37 not being intended to enable the High Court to admit evidence for the first time when none was given in the court below. However, this is not such a case.

(c) Nor can one argue with Haugh J’s unwillingness to hear an appeal concerning a case which in truth was not heard at all in the Circuit Court. The situation which he was dealing with is different to the situation here for the reasons already outlined. Furthermore, his comments concerning the intention behind the power to admit fresh evidence must be viewed in the context that he was dealing with a situation where there was no hearing at all in the Circuit Court. This Court considers that the power to admit fresh evidence is not limited by the section. The decision to allow fresh or new evidence is a matter for the discretion of the Judge – which discretion is to be exercised fairly. The circumstances will vary from case to case.

(d) It is true that a respondent in an appeal from the Circuit Court to the High Court is entitled to know, at the opening of the appeal, what evidence the appellant may be expected to produce, save, of course, for such fresh evidence, if any, as may be permitted to be given (emphasis added). The point Haugh J. was making is that – and aside from any fresh evidence permitted - the respondent to the “appeal” before him would not know the evidence proposed to be called if the appeal was allowed to proceed – as there was no hearing in the Circuit Court and he had not heard any evidence called there.

14. In the replying affidavit sworn by Ms D on behalf of the husband (respondent to the appeal) paragraph 6 avers; - “I further say that if this honourable Court permits the appellant to adduce oral evidence that was not heard before the Circuit Court, that in the interests of fairness and justice, the appellant’s motion be remitted for a fresh hearing in the Circuit Court where such evidence can be heard.”.

15. From a procedural and practical point of view this court does not believe that the course proposed in the previous paragraph is correct or wise in the event that the court allows the appellant to adduce oral evidence (or indeed evidence on affidavit) that was not heard or received in the Circuit Court. Nor is it necessary to adopt such a course as s.37(2) affords to the court a discretion to allow evidence to be given or received on the hearing of the appeal which was not given or received in the Circuit Court - it affords to the court the discretion to grant “special leave” in this regard.

16. The weight to be attached to such evidence, if any, is ultimately a matter for the substantive appeal hearing.

17. The two witnesses whom the appellant wishes to call to give oral evidence are counsel who concluded the terms of settlement and the forensic accountant who was involved for the wife.

18. The appeal hearing involves a rehearing of the matter which was decided in the Circuit Court and the court is satisfied that the interests of justice are such that the appellant ought to be allowed to adduce additional evidence from the two professionals mentioned. Necessary Directions/Costs - and subject to hearing any submissions from Counsel concerning the necessary directions and costs before final decision in this regard.

19. The motion which was the matter decided on 27 March 2025 was grounded on affidavit evidence with the husband’s replying affidavit (as detailed above). In these circumstances the court proposes to permit the appellant to adduce her further evidence by serving and filing affidavits sworn by both of the professional witnesses involved within such time as may be agreed between the parties. Similar Special Leave will be granted to the husband in respect of such additional witnesses as he may wish to nominate – again such further evidence to be by serving and filing affidavits sworn by the named witnesses within such time as may be agreed between the parties. In default of agreement on timelines the court will fix same. The court proposes also to direct the attendance of the deponents in all of the affidavits used in the Circuit Court and in the High Court for cross-examination at the hearing of the appeal [but excluding the Solicitors who swore the affidavits in relation to this Special leave application].

20. The court proposes to reserve the costs of this application but will hear any submissions in that regard if there is any opposition to that order.

21. On 27 June 2025, after this judgment had been delivered the court made the following order; “Allow Appellant to adduce evidence from the 2 professionals mentioned being the Junior Counsel and the accountant who acted for the Appellant at the time of settlement. Such evidence to be adduced by the Appellant by serving and filing Affidavits sworn by both professional witnesses within 2 weeks of today. Special leave to the Respondent in respect of such additional witnesses as he may wish to nominate. Such further evidence to be adduced by serving and filing Affidavits sworn by the nominated witnesses and delivered within 2 weeks of receipt of the Appellant’s witnesses’ Affidavits. Direct attendance of deponents in all Affidavits in the Circuit and High Court proceedings for cross examination at the hearing of the Appeal but excluding the solicitors who swore the Affidavits in respect of the special leave application. The Respondent has reserved, and it is acknowledged that he is entitled to reserve his position in respect of the admissibility of, the relevance of and the weight to be attached to, any such evidence and likewise in respect of the Appellant. Reserve costs. Liberty to apply.”