Court allows discovery of valuation report to non-parties via confidentiality club to ensure fair share valuation.

THE COURT OF APPEAL

CIVIL

UNAPPROVED

Neutral Citation Number: [2026] IECA 21

Record Number: 2025/125

High Court Record Number: 2021/15M

Binchy J. O’Moore J. McDonald J.

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

AMENDED BY THE FAMILY LAW ACT 2019) AND IN THE MATTER OF

THE FAMILY LAW ACT 1995

BETWEEN/

C

APPELLANT

-AND-

B

RESPONDENT

-AND-

Others

NON-PARTIES

JUDGMENT of Mr. Justice Brian O’Moore delivered on the 27th day of February, 2026

1. For some years now, it should in most cases have been unnecessary for a court to be asked to decide any dispute about discovery. The general principles have been well settled, not least in the judgment of the Supreme Court (Clarke C.J.) in Tobin v The Minister for Defence [2020] 1 IR 211. That judgment comprehensively sets out the rules to be followed, and the principles to be applied, by any court in deciding whether or not discovery is to be ordered. The current appeal turns on issues of confidentiality. The principles to be followed in deciding whether or not to order discovery in circumstances where the confidentiality of parties may be affected have also been thoroughly described by a judgment of this Court (Collins J.) in Ryan v Dengrove [2022] IECA 155. Notwithstanding the fact that it was accepted by both parties at the hearing of the appeal that the judgment in Ryan v Dengrove was “the last word” on the interplay between discovery and confidentiality, neither side referred to the judgment of Collins J. in their written submissions and it did not appear in the agreed Book of Authorities.

2. The advantage of having such clear case law is obvious. It allows parties, when appropriately advised, to decide at an early stage whether or not discovery is to be sought and, if so, the parameters of any discovery likely to be ordered by the court. In the past, applications for discovery have become sagas in themselves. Tobin is an instance of such a case. To take another example, Boehringer Ingelheim Pharma GmbH v Norton Waterford Limited [2016] IECA 67 involved a four-day hearing before Cregan J. in the High Court, a lengthy and impressive ex tempore judgment on that motion, a significant dispute about whether or not there should be a stay on the discovery ordered by the High Court, and a lengthy hearing (of over six hours)on the one day before this Court leading to the judgment of Finlay Geoghegan J.

3. Needless to say, such lengthy and costly disputes about whether or not discovery should be ordered in the first place are undesirable and should be avoided. This is why the clarity as to the rules governing discovery provided in Tobin and, (as far as confidentiality is concerned) in Ryan v Dengrove, are so important. While inevitably there will be some cases where there is a genuine dispute about the application of the principles set out in the case law, these should be few and far between.

4. In this regard, significant responsibility rests with the lawyers advising clients about what, realistically, can be achieved in either bringing or defending any discovery application. Clients may well have expectations which veer from the optimistic to the completely unreal. Every lawyer has a professional obligation to advise in a way that does not pander to the preferences of the client but rather gives an unvarnished and clear-eyed view about the likely outcome of any discovery application. A failure to do so may lead to very significant costs being run up, which otherwise should not have been incurred, not to mention the waste of court time which the pursuit of unreal objectives almost inevitably produces.

5. Without being critical of the lawyers involved in the current appeal, who doubtless have advised their clients appropriately, the appeal to this Court was one which has not been informed by appropriate consideration of the relevant well-known authorities. It is possible to dispose of the appeal very briefly. However, given the repeated references made by the appellants to the commercial significance of the appeal from their perspective I will give a fuller judgment on the application than perhaps it warrants.

6. The underlying proceedings are divorce proceedings. Given the importance of the pleadings in determining relevance (an essential exercise in deciding on any discovery application) it is perhaps surprising that the pleadings in this action were only made available when the Court requested them, and even then, hardcopies were not produced until the hearing of the appeal.

7. As one might expect, financial issues loom large in the claims made in the underlying proceedings. Put briefly, C seeks divorce from B. In the special endorsement of claim to the special summons, she asserts:

‘The applicant is unaware of the precise details of the Respondent’s current financial situation and she awaits full and frank disclosure of his financial affairs to include but not limited to his income and all assets.’

8. A range of financial reliefs are then sought. C has also sworn an affidavit of means, setting out her assets, income, debts and liabilities, and monthly outgoings. Included in the list of assets is:

‘Five percent shareholding in [X] Limited.’

9. The name of the company is given, but for obvious reasons will not be recited here. It is stated that the value of this shareholding is “unascertained”.

10. For the sake of completeness, it should be noted that in his replying affidavit B sets out his objections, and proceeds to counterclaim for a number of reliefs. Many of these are also of a financial nature.

11. The financial situation of the parties is therefore a live issue in the proceedings. Even if that were not the case, the constitutional and legislative provisions which govern proceedings of this nature make it plain that the Court has an obligation to consider the making of proper provision for the spouses and their children. As it happens, C and B have a number of children.

12. Article 41.3.2 provides:

‘A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that – (i)…

(ii) such provision as the Court considers proper having regard to the circumstances exists or will be made for spouses, any children of either or both of them and any other person prescribed by law…’

13. The Family Law (Divorce) Act 1996 provides (at s. 5(1)(c)):

‘Subject to the provisions of this Act, where, on application to it in that behalf by either of the spouses concerned, the court is satisfied that – …

(c) such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent members of the family, the court may, in exercising jurisdiction conferred by Article 41.3.2° of the Constitution, grant a decree of divorce in respect of the marriage concerned.’

14. Section 20(1) of the 1996 Act provides that (in deciding whether or not to make certain orders under the Act) the court: ‘…shall ensure that such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent member of the family concerned.’

15. Both by reference to the general law, therefore, and by reference to the specific issues defined in the pleadings in this divorce action, the financial circumstances of C and B are relevant.

16. Inevitably, given the potential value of the 5% shareholding in X Limited, correspondence ensued between the solicitors for B and the solicitors for C about what the value of that shareholding was. PwC, the auditors for X Limited, wrote to C’s solicitors on the 7 June 2023 stating the following:

‘The company is a private company and does not publicly disclose any financial details or publish accounts as they are commercially sensitive.’ ‘[C] is not entitled to any financial information.’

17. Subsequent to this correspondence, which obviously did not advance matters as far as B was concerned, there was correspondence from the solicitors for Z Limited. That letter stated that Z Limited was a trustee of certain shares in X Limited, and that this included the shares “held for the benefit of…C.” The letter went on: – ‘Our client wishes to cooperate with your client's request for information, consistent with the maintenance of confidentiality regarding affairs and financial information of the … Group, which information has always been, and remains, confidential and extremely commercially sensitive.

We note your acknowledgment of this in your letter dated 8 September 2023 and, accordingly, you will appreciate that our client is entitled take steps to preserve such confidentiality and commercial sensitivity in a proportionate manner in the context of the matrimonial proceedings referenced in your letter and to which our client is not a party (‘the Proceedings’). To that end, and having obtained advice from counsel, our client is prepared to make available the attached redacted version of the Nominee Agreement … whereby the Shares are held in trust (‘the Nominee Agreement’). The redactions which have been applied to the copy Nominee Agreement furnished herewith are designed to protect the identities and confidential information of third parties, which cannot be relevant to the purposes underlying your client’s request.

This is furnished in reliance on the implied undertaking applicable to the Proceedings and in express reliance on the assurances contained in your letter of 8 September 2023 that the document will be covered by the in camera rule and will be treated with the utmost confidentiality and will only be circulated to your client, her husband and the respective advisers for the purposes of the Proceedings and for no other purpose.’

18. This letter, sent to C’s solicitors, enclosed a redacted version of the Nominee Agreement. The letter from Z’s solicitors was then passed on (on the 15 November 2023) by C’s solicitors to B’s solicitors, in a letter which included the following paragraph:

‘We confirm that we have written to the Company's Auditors pursuant to Article 13 of the Nominee Agreement to call for evaluation of (C's) … shares in accordance with the methodology specified therein and Article 13.6 particularly.’

19. As I have said, this letter from C’s solicitors is dated 15 November 2023. It concluded by saying that “as soon as we receive a response, we will contact you”. In fact, it was almost a year before C’s solicitors received a response. The response was by way of a letter from Z Limited, which stated: ‘… we can inform you that PwC have carried out a valuation exercise having regard to comparable companies and recent transactions… We are not prepared to furnish you with PwC's report for reasons of confidentiality and commercial sensitivity. However, we can inform you that PwC have advised that in their opinion the indicative value of a 4.9% shareholding in the company as at 31 December 2023 was €703,000. This is based on a minority discount of 70%.

This information is confidential and extremely commercially sensitive.’

20. The current motion was then issued on behalf of B, seeking non-party discovery from the appellants (X Limited and Z Limited) of the following documents:

‘An Order directing the non-parties hereto to make Discovery on Oath of all documents in their possession, power or procurement concerning the Applicant’s shareholding in [Z Limited] or [X Limited] and without prejudice to the generality of the foregoing, the valuation report prepared by PwC in respect of the applicant’s said shareholding…, the audited accounts for each of [X Limited] and [Z Limited] for the three years respectively ending 31 December 2021, 2022 and 2023 and such other documentation of whatsoever nature concerning the Applicants said shareholding as they may have in their power, possession of procurement…’

21. The motion was grounded on an affidavit of B’s solicitor, Aaron McKenna, who exhibited the correspondence and sought discovery in terms of the Notice of Motion. The position of X and Z was then set out in a replying affidavit of their solicitor, Richard Neville. This affidavit is lengthy and detailed. It runs to 23 pages of text and refers to some 30 pages of exhibits. Strikingly, Mr. Neville states on a number of occasions that the documents sought (including the valuation report) are confidential but nowhere describes why this is so. Apart from the unsurprising contention that details of financial arrangements will often be considered confidential, nothing is said about why the valuation report attracts confidentiality or why its disclosure would be in any way harmful to X, Z or the shareholders in either company. This is quite radically different to the position in Boehringer (where secret production processes were at issue), the position in Heineken v Hartside [2010] IENC

3 (involving commercial arrangements with third parties) or the position in KLN v SEAI [2025] IECA 196 (where a company sought details of its competitor’s pricing structure). In each of these cases, the confidential nature of the documents sought, and the possible detriment involved in their disclosure, were carefully and thoroughly set out in affidavit evidence. This was not done here. Instead, Mr. Neville’s evidence is to the effect that the non-parties do not want anyone to know their private business. This is not to be disregarded, but falls far short of the evidence available in other cases involving confidentiality.

22. Mr. Neville’s affidavit gives no details of the costs involved in having PwC carry out the valuation and produce its report. This has some little significance as counsel for the appellants made a specific reference to the “considerable expense” of PwC’s involvement. In the absence of any evidence, this submission is without any real weight.

23. Because of the lack of detail in Mr. Neville’s affidavit, both the trial judge and this Court were offered sight of the valuation report so that we could be satisfied that ‘the [valuation] exercise has been done in a proper way…’; page 15 of the transcript of the appeal hearing. The trial judge, quite correctly, refused to look at the report. Remarkably, a specific ground of appeal asserts that the trial judge was wrong in this regard. Ground of Appeal 13 reads:

‘The High Court erred, in fact and in law, in failing to avail of the facility to look at and inspect the PwC Valuation Report prior to determining the discovery application, and, in particular, the issue of the relevance and necessity of providing the report, and the other documents sought, to ensure a fair resolution of the matrimonial proceedings.’

24. There are a number of pretty basic reasons why the Court should not have regard to the contents of the valuation report. At its most fundamental, the Court will not have regard to material which is not available to all parties. The analogy which counsel for the nonparties sought to draw (by reference to a judge considering documents in order to decide whether privilege was properly claimed) is misplaced. That practice was devised for the purpose of avoiding any violation of the constitutionally protected right to legal, professional or litigation privilege. No similar procedure is available for the purpose of advancing C’s family’s desire to shelter the extent of their wealth. Secondly, even if we were to entertain this basic denial of B’s right to due process, it is unreal to expect the members of any court to be able (without expert assistance) to interrogate, look behind and assess a professional valuation carried out by a leading accountancy firm.

25. It is worth noting one other omission in Mr. Neville’s affidavit. Nowhere does he give any evidence as to how his clients would be damaged by the limited circulation of the valuation report to B’s legal team and any professional accountant or valuer engaged by them. This is not to be critical of Mr. Neville. It may well be that there is nothing that could have been said. His counsel, in his reply, dealt with confidentiality clubs in this way: ‘Could I just say something about confidentiality rings? You don't tend to hear formal reference to confidentiality rings in family law cases. In fairness to the Court, I've been involved in a lot of family law cases, and I have come across cases where, informally, people have agreed that financial -- indeed, I did one in the last year, where financial reports about companies would be restricted to the solicitors, the forensic accountants, and that, generally speaking, one would, to a degree, rely on the good professional judgment of the lawyers, but with the significant caveat that if there was a problem, there would be a liberty to apply to the Court. For example, if a lawyer saw something and said, ''I really need to get instructions around this, but it will require giving some information to the client", they can simply go into court, bring an application. I have to say, just so the Court knows, I've seen that informally done in family law cases, although I don't know of any judgment in a family law case which refers to confidentiality ring; it tends to be as Mr Justice would know more about this… would know about this than I would, tended to start it off on a competition basis -- [Judge]: And procurement cases and so on, but Mr Justice Clarke is very clear about the utility of confidentiality rings. [Counsel]: Oh, yes, but obviously, and this is the concern that any company would have, the wider the information goes …’

26. It seems, therefore, that there is no substance to any objection by X or Z to the circulation of the valuation report to a suitably restricted confidentiality club. This is a point to which I will return.

27. The trial judge found that B was entitled to the valuation report. In doing so, he determined that the value of C’s shareholding was relevant (paragraph 32), that the Court “may well have to decide the value to be ascribed” to the shares (paragraph 33), and that there was no other “viable route by which to obtain [the information]” notwithstanding its relevance (paragraph 38). In ordering the disclosure of the valuation report, and leaving over to another day the balance of the documentation sought in the motion, the trial judge correctly adopted an iterative approach; puzzlingly, and wrongly, the Notice of Appeal criticises the trial judge for failing to take an iterative approach towards discovery; ground 17, which reads: ‘The High Court erred, in fact and in law, in refusing to adopt an iterative approach and to postpone a determination of the motion unless and until the Trial Judge hearing the proceedings might consider that the PwC Valuation Report is relevant to the matters at issue and necessary to be discovered, whether for the purposes of ascertaining proper provision or for some other reason arising at trial’.

28. Contrary to what this ground suggests, it would have been quite inappropriate for the trial judge simply to have bundled these complex issues (both of disclosure and valuation) into the trial. That would have been a recipe for utter chaos, and would almost certainly have resulted in an adjournment of the trial. That would be undesirable in any type of proceeding. It would be an especially suboptimal way of conducting the hearing of a sensitive and difficult action such as the current one.

29. I have summarised the judgment of the High Court and, in doing so, have mentioned paragraph 33. This attracted specific criticism from counsel for the appellants, and in large measure constituted the focus of the appeal. In considering the arguments made to this court on behalf of the non-parties, I will start with this section of the High Court judgment.

30. Paragraph 33 reads:

‘Divorce proceedings are adversarial in nature and the actual value of assets is frequently a significant issue in dispute. Pre-trial preparations and engagement between the parties usually does narrow the extent of the dispute. While an opinion on the value of the shares has been proffered there is a possibility, if not a probability, that a conflicting opinion will emerge if the husband’s experts consider the methodology used and the information which the authors of the PWC Valuation considered. Ultimately the Court may well have to decide the value to be ascribed’.

31. In his oral submission, counsel argued that this conclusion “indicates an error” on the part of the trial judge. He went on to refer to paragraph F1 of B’s written submissions to this Court, which read:

‘Whilst these submissions have sought to provide a full response to the Appellants written submissions, in truth, there is only one real issue in this appeal. That concerns the argument that the High Court in granting a decree of divorce in this case, will be bound by the auditor’s determination of value and be unable to hear contradictory evidence or in any way examine and assess the validity of that valuation. There are several reasons why this is incorrect and why the learned trial Judge’s decision should be upheld’.

32. Counsel agreed that this was the “central issue” on the appeal. Having said that (at page 5 of the transcript) counsel recast the issue (at page 6) as follows:

‘So we join issue with that fundamental point the other side make that, if I use it colloquially, the expression, proper provision in some sense trumps everything, and private agreements sort of fall by the wayside.’

33. Of course, this is not what B’s lawyers were saying. Instead, they maintained (as the trial judge had found) that the court may have to value the company and was not, in that regard, bound by the auditor’s valuation. This is in contradistinction to the position of the non-parties, set out in trenchant terms by their counsel in written submissions to this Court:

‘The High Court erred in ordering non-party discovery of the Valuation Report notwithstanding the fact that, while there is obviously some value attaching to the Shareholding, the quantum thereof is exclusively regulated by the Nominee Agreement, according to which the Shareholding is held by [Z] for [C’s] benefit. As explained below, the carefully constructed Nominee Agreement ensures that the only value which the Shareholding can possibly have for [C] in this context is that which the auditors of [X] are objectively willing to place on it: [C] is provided with no recourse under the Nominee Agreement to dispute that value’.

34. As a matter of style, I am not convinced that any court needs the assistance of both underlining and heavy type to understand a point. As a matter of substance, this position is quite mistaken.

35. The auditors do have a role in valuing C’s shareholding. If C wants to sell her shareholding, she must offer it around to a limited group of people (paragraph 6.1 of the Agreement). If any or all of these people want to buy, the sale goes through at the price nominated by C. The auditors’ view of the value plays no part at this stage. Only if no one is willing to buy at C’s price, and only if other Beneficiaries are willing to acquire the shares, though at a different price, are the auditors pressed into service (clause 6.2 (h) et seq.). They fix a price for the shareholding which is then notified to C and the party interested in buying. C then has a time limited option to accept or reject the auditors’ valuation of the shares.

36. Equally, there is a second set of circumstances in which the auditors play a part in valuing the shares. The auditors can fix the value of C’s shareholding should she dispute the price at which “all or some” of the shares in Z Limited are proposed to be sold by X Limited (clause 13).

37. It will be clear from this brief analysis that C may well want to sell her shares at a price of her choosing and that, given what we are told about the success of the entire venture, one of the other Beneficiaries may want to buy the shares at that price. The auditors’ valuation is quite simply an irrelevance at that point. The central proposition set out at paragraph 1.2 of the appellants’ submissions, and repeated at paragraphs 1.3 and 6.2, is clearly wrong. It is fundamentally mistaken to state (as is done at paragraph 6.2) that: ‘the value of the Shareholding is the value placed on it by the auditors of [Z] i.e. 703,000 euro.’

38. The trial judge was therefore correct on this fundamental point. The Court might have to value the shares. The valuation report is necessary to allow B’s lawyers to be able to address this relevant issue.

39. There remain three further submissions to consider.

40. The first of these is that none of the Beneficiaries would be obliged to buy at the valuation fixed by the Court, and the process of valuing the shares was therefore a meaningless one. It was put this way (among others): ‘[Counsel]: Nonetheless, as I said, it is not clear to me exactly what the utility of the High Court Judge, going into the exercise contemplated by Mr. Justice Jordan would be, when at the end of the day, the only people who can buy these shares, would not in any sense be bound by it.’

41. I do not accept that submission. The valuation of an asset is something that is done in many types of litigation. It does not mean that the valuation requires the asset to be sold at that price except in very unusual cases. One example would be the transfer of a shareholding pursuant to an order made under section 212 of the Companies Act 2014. However, the fact that the valuation does not lead to the sale of an asset at that price does not mean that the exercise is not to be done. Indeed, at the start of his oral submissions counsel for the appellants stated (at page 4):

‘what the court concentrates on in making proper provision, is the disposable or realisable value of the assets.’

42. In the absence of an actual disposal of the shares at a proper value, the valuation of them by the Court is the only proper way to proceed. It might also be noticed that, in making this submission, counsel (very properly) effectively conceded the relevance of the valuation report.

43. The second outstanding argument is to be found in this submission by the appellants’ counsel (at page 18, lines 12 to 26): ‘…given where the assets came from, it must be an important factor. It's a principle of family law that when you're making proper provision -- I recognise no members of the Court do a huge amount or has done a huge amount of ordinary family law litigation, but it's a principle that in making proper provision you must look at where the assets came from, so if they're inherited assets, they're not treated quite the same as whatever. But I think it's fair principle extending that to say that in looking in discovery applications in this situation, you have to look at where it came from as well. [Judge]: Sorry, just repeat that, [counsel], in looking at, yes?

[Counsel]: Yes, Judge. Sorry I'm --

[Judge]: No, no, just repeat that. [Counsel]: What I say is this. It is a principle of proper provision law -- [Judge]: No, I got that, but in relation to discovery you are saying that a relevant factor is where the assets came from; you look at where -- [Counsel]: And the circumstances in which they came to be vested in this way.’

44. Inasmuch as this suggests that the interests of third parties must be taken into account, I agree with this submission and will return to it. However, if counsel means that in considering discovery applications in family law cases there is some special rule by reference to the source of assets and the background to their vesting in a party, I do not accept that this is justified by reference either to principle or authority. It is notable that no authority was cited.

45. The third submission is that the trial judge did not properly balance the interests of the non-parties with those of B. Here, once again, the question of confidentiality was stressed by the appellants. It is worth recalling that, in this case, the value of the shares is clearly relevant to the dispute. The valuation of the auditors is not the last word in assessing what the shares are worth. A valuation by the Court is going to be required. Disclosure of the valuation report is therefore necessary in informing B as to what the shares may be worth. Even then, as the trial judge recognised, it may not be enough, and further discovery may be needed. One has sympathy for the shareholders in X and Z, but it is impossible to see how C’s shareholding can be valued without some intrusion into their affairs. While it is asserted that even C would not be entitled to this report, that is not the end of the matter. Firstly, it is at least arguable that C could challenge the valuation on the grounds that it was not properly done or that (for example) it applied an excessive minority discount (of 70%). Secondly, given the need to value the shares the confidentiality enjoyed by the other shareholders and the companies themselves will yield to the requirements of justice where there is no realistic alternative. That is the situation here. The real challenge in these circumstances is to craft an order that limits the extent to which the erosion of confidentiality is problematic for the nonparties. While it did not feature in the High Court, the confidentiality club provides an obvious way in which the concerns of the appellants can in large measure be met. It was accepted by counsel for B that, subject to having liberty to apply, an appropriate order would be to confine the circulation of the valuation report to named solicitors and counsel and named accountants or valuers. Of course, in order to make this arrangement effective each member of the club will have to give an undertaking that they will keep the material confidential, will use it solely for the purpose of these proceedings, and will not (unless permitted by order of the court) disclose any of the information to any person who is not a member of the club. That deals as adequately as the situation will allow with the confidentiality concerns of the appellants.

46. I would therefore dismiss the appeal but vary the order of the High Court so that the valuation report is circulated only to the persons identified in paragraph 45 of this judgment, subject to those persons giving suitable undertakings.

47. Given the fact that this appeal concerns non-party discovery, I would propose to list the matter for mention at 10 am on Thursday the 12th of March to deal with any outstanding matters including costs. The parties should try to agree all of these issues in good time before then but, if they cannot, an agreed book of authorities should be lodged by 5 pm on the preceding Friday. There is no need for written submissions.

48. Binchy and McDonald JJ. agree with this judgment and with the orders I propose.