High Court allows striking out of counterclaim due to failure to vouch Affidavit of Means within 21 days.

APPROVED

REDACTED

FOR PUBLICATION

[2025] IEHC 712

THE HIGH COURT

FAMILY LAW

IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT, 1996 AS AMENDED

RECORD NO. H.M. 2024 146

BETWEEN:

C.N.

APPLICANT

-and-

T.N.

RESPONDENT

Ex Tempore Judgment of Ms Justice Nuala Jackson delivered on the 4th November 2025.

1. This matter comes before me by way of motion to strike out the Respondent’s replying Affidavit and the counterclaim therein on the ground of failure to vouch his Affidavit of Means.

2. I have considered the Affidavits filed in this matter and the submissions made.

Family law proceedings are undoubtedly stressful and emotionally draining and all the more so when accompanied by ill health. However, it is important that proceedings be progressed as time tends to exacerbate rather than reduce.

3. The Special Summons in this matter was issued on the 26th September 2024. This is now in excess of one year ago. A replying Affidavit (with a counterclaim) was sworn on the 10th February 2025. An Affidavit of Means was also sworn by the Respondent on that date. It is accepted that there has been no vouching of this affidavit.

4. The Rules of the Superior Court Order 70A apply to these proceedings. Order 70A (6)(3) provides for vouching of an Affidavit of Means within 21 days of request. The nature and extent of vouching required is provided for in Practice Direction Family Law HC51 at Direction 5 thereof. The Affidavit of Mr. Ring sworn herein exhibits a number of letters seeking such vouching. The earliest letter which I have seen referencing vouching is the 28th January 2025. Clearly, the 21-day period allowed by the Rules has long since expired. It is clear that the matter has been before this Court at least since April 2025 (in excess of 6 months ago) where vouching was being actively addressed.

5. I have considered the Affidavits of the Respondent. He deposes to his ill health in respect of which the Court has considerable sympathy. He deposes to difficulties which he has experienced in getting legal representation. This is not a matter which is before the Court. Obviously, it is most desirable that complex proceedings such as those before the Court would be litigated with the benefit of legal advice and legal practitioners. However, this is not a matter for the court. The legal representation status of the parties and a desire for legal representation is a factor which the court takes into account in determining applications in relation to the progressing of proceedings, but an absence of legal representation cannot be permitted to entirely stall proceedings, and this is what has occurred in this case. Litigants are entitled to have their cases move along with such reasonable expedition as the circumstances dictate. The circumstances of this case, in my view, require that it is not unreasonable that vouching would be provided where several months have elapsed since it was sought. I must, in weighing all of the circumstances of this matter, have regard to the fact that the Respondent is a legally qualified person and there is no particular technicality to vouching of an Affidavit of Means, particularly having regard to the clear terms of the Practice Direction referenced above.

6. I have had regard to the messaging between the Respondent and the Applicant directly. I do have some concerns about this messaging in circumstances in which the Applicant is legally represented. It is clear that the Respondent wishes to enter into negotiations, and he makes constant proposals to the Applicant concerning this. However, it is unlikely and unusual that negotiations in relation to financial ancillary reliefs would occur in the absence of vouching. The Respondent’s desire to resolve this matter through settlement is admirable but this cannot be without appropriate vouching. If he wishes to progress these proceedings, the manner in which this can best be achieved is to vouch in accordance with the legislation and Practice Direction and then to have a settlement meeting. Obviously, if legal representation can be available to both parties for this, that would be the optimal situation. It is simply not acceptable to continually reference negotiation and a desire to settle proceedings such as these without vouching being done.

7. Progress must be made at this point. I was concerned that the Respondent could not respond to my request as to how long he required to make disclosure.

8. I am going to allow the Respondent 12 weeks to make his disclosure by way of vouching. This brings us to the 26th January 2026. I will adjourn the motion for hearing to the 9th February 2026. If vouching has been done, I will strike it out (subject to hearing the parties on other matters arising). If vouching has not been done, I will hear and determine the motion on that date. I will put this matter into the list to fix dates on the 16th February 2026. At that time, a date for a contested or an uncontested hearing (as appropriate) can be fixed.

9. Reserve costs.