High Court quashes CAB's interim order due to improper use of confidential family court divorce records as evidence.

THE HIGH COURT

[2026] IEHC 34

Record No. 2025/25 CAB

Between:-

CRIMINAL ASSETS BUREAU

Applicant

-and-

X

Respondent

-and-

Y and Z

Notice Parties

Judgment of Mr. Justice Oisín Quinn delivered on 13 January 2026

I. INTRODUCTION

1. This judgment concerns a unique situation that has arisen in the context of proceedings commenced by the Criminal Assets Bureau (“CAB”) against an individual who shall be referred to as X.

2. Pursuant to section 2 of the Proceeds of Crime Acts, 1996-2016, CAB applied ex parte and in camera to this Court on 19 November 2025 for an interim order restraining X from disposing or otherwise from dealing with a residential property in Dublin (the “Property”) and some luxury clothing and goods (the “Designer Goods”) which CAB claim are beneficially owned by X and which CAB also claim constitute directly or indirectly the proceeds of crime.

3. Two other individuals, Y and Z are registered on the Folio as the legal owners of the Property. CAB allege that X is involved in serious criminality. Y is an acquaintance of X who knows him through a mutual friend. In interviews with an Garda Síochána carried out in 2019 it appears that Y contends that he is the legal and beneficial owner of the Property and that he is renting the Property to X. Y and Z are divorced since 2021 and Z claims that she has no interest in the Property and that, as far as she is concerned, the Property is owned by her former husband, Y.

4. In the ex parte application made to this Court on the 19 November 2025, CAB relied on extracts from the Circuit Family Court file relating to the divorce proceedings between Y and Z. These documents were obtained by CAB following an ex parte application made by CAB to the Circuit Court judge on 2 May 2024. Those Circuit Court proceedings had commenced in 2019 and concluded with a consent decree of divorce made in 2021. Those proceedings (the “Family Law Proceedings”) had obviously been dealt with and heard with the benefit of what is known as the in camera rule; namely section 38(5) of the Family Law (Divorce) Act, 1996 which provides that section 34 of the Judicial Separation Act, 1989 is deemed to apply to divorce proceedings and section 34 of the 1989 Act provides that such proceedings “shall be heard otherwise than in public”.

5, As a result of the Circuit Court Order made ex parte on 2 May 2024, CAB obtained copies of the filed pleadings and affidavits of both Y and Z from their Family Law Proceedings together with the terms of their consent divorce. CAB’s interest in this material was to see how Y and Z had dealt with the Property. Neither Y nor Z were aware of the ex parte application to the Circuit Court, nor were they aware that these materials had been supplied to CAB on foot of that Order.

6. In general, an application made by CAB pursuant to section 2 of the Proceeds of Crime Acts, 1996-2016 (the “POC Acts”) typically relies in part on the belief evidence of an officer of An Garda Síochána not below the rank of Chief Superintendent. In this case, the section 2 application was, as would be normal, supported by such an affidavit which in part indicated that one of the grounds for the “belief” was the manner in which the “Property” was treated by Y and Z in the Family Law Proceedings. The family law materials were not however exhibited in the grounding papers for the section 2 application by CAB. Nonetheless, when the application was made to this Court on 19 November 2025, relevant extracts from the Family Law Proceedings between Y and Z were handed in to the Court and relied upon by CAB and in turn these materials were, in part, relied upon by this Court in reaching a conclusion to grant the application and to make the section 2 order sought by CAB in respect of the Property. CAB was, as is normal on the making of the initial Section 2 Order, given liberty to issue and serve a motion seeking reliefs pursuant to section 3 of the POC Acts. This is the phase in the legislative scheme set out in the POC Acts where a respondent can, inter alia, challenge the entitlement of CAB to the seizure orders sought in respect of property which CAB claims is the proceeds of crime.

7. In making the section 2 Order on the 19 November 2025 this Court directed that Y and Z be notified of the making of the Section 2 Order and of the proposal to refer to the family law materials in the application against X. The matter was adjourned to 9 December 2025 which was set as the initial return date of the section 3 motion. On that date Counsel and solicitor appeared on behalf of Y and requested that he be made a formal notice party to the section 3 motion. In addition, Counsel on behalf of Y indicated that Y wished to challenge the proposal to refer to his Family Law Proceedings in the application for the reliefs pursuant to the POC Acts.

8. At this juncture, X has not been notified of any details concerning the contents of the Family Law Proceedings. Accordingly, having considered the matter, this Court made an Order on 9 December 2025 joining Y as a Notice Party to the section 3 POC Acts motion – he is one of the registered legal owners of the Property and appears, at a minimum to be a person entitled to be heard before any section 3 orders concerning the Property are made.

9. In addition, and at the request of Counsel for both CAB and Y, the Court gave expedited directions for a hearing on 19 December 2025 on the issues arising concerning the Family Law Proceedings. The Court directed that Z be notified of this and be given the opportunity to participate, notwithstanding that Z had not appeared on 9 December 2025.

10. Pursuant to these Directions CAB delivered Points of Claim and Y delivered an Objection and Points of Reply and Counterclaim. Both CAB and Y delivered helpful written submissions. Finally, while Z did not participate, she supplied an email to the solicitors for CAB indicating, inter alia, that she wished that the in camera rule “remain firmly in place” in respect of the Family Law Proceedings.

11. At the commencement of the hearing on 19 December 2025 listed pursuant to the directions made on the 9 December 2025, this Court made an Order that the hearing would proceed in camera pursuant to section 8(3) of the POC Acts in light of the fact that the application concerned, inter alia, whether or not elements of the Family Law Proceedings between Y and Z should be referred to in these proceedings between CAB and X. The hearing took place over the course of 19 December 2025 and this judgment represents the Court’s decision in respect of that hearing.

II. BACKGROUND

12. Firstly, it is important to bear in mind that the following background has been provided to this Court in the affidavits that supported the ex parte application made by CAB pursuant to section 2 of the POC Acts. Accordingly, the Court has not had the benefit of hearing from X in relation to this matter. With that caveat, the background indicates that CAB has conducted a very extensive investigation in relation to X in the context of the Property since 2019. In the affidavit of the Detective Chief Superintendent (the “DCS”) which supported the application for section 2 relief, the grounds for the belief evidence include the assertion that X is a high-ranking member of a serious organised crime group (the “OCG”) which has extensive involvement in the illegal sale and supply of drugs.

13. In addition, the DCS refers to previous proceedings pursuant to the POC Acts in which X consented to the making of Section 3 orders over certain other property and there was a finding by the High Court that X was a career criminal who was engaged in organised crime and was engaged in substantial drug dealing.

14. In a further affidavit sworn on behalf of CAB, a Detective Garda working as part of the investigation team under the direction of the Chief Bureau Officer (the “Detective Garda”) explains how this particular investigation commenced following a search of a hotel room in Dublin in January 2019. The Detective Garda explains that X has a substantial number of convictions for offences committed between 2000 and 2020 including one for which he received a six year sentence and including eight convictions for possession of drugs.

15. The Detective Garda explains that the Property was apparently purchased by Y and Z in February 2014 for €90k and is registered in their joint names on the folio. The Detective Garda then explains how extensive renovations were carried out to the property by or on behalf of X in the second-half of 2018 and how the estimated cost of these renovations is in excess of €330k, being more than three times the cost of the purchase of the house. These renovations included installing expensive bathrooms and a kitchen and the installation of bulletproof windows and a sophisticated security system. Y, in his interview with the Gardaí, indicated that he had funded some of the renovations to the approximate cost of €50k and that X had funded the “internal fit out”

and “picked out the kitchen”. When the Property was searched in May 2019 X apparently admitted that he had funded the sophisticated CCTV system and windows that had ballistic protection properties.

16. Faced with the explanations of X and Y that Y is the owner of the Property and that X is simply a tenant, CAB content that a tenant would not conceivably spend more than three times the amount of the cost of the Property on renovations including towards the installation of bulletproof glass and a sophisticated CCTV system unless they were in fact the true beneficial owner of the Property.

17. In the interviews in May 2019, Y claimed that he was the beneficial owner of the property and not X. Z claimed that the property had been initially bought by Y and Z and was rented “straight away”. She claimed that she had no idea about the renovations.

She also indicated (in the interview in May 2019) that she was not making any claim in respect of the property. The Revenue records indicate that Z subsequently told the Revenue that Y is the sole owner of the property stating that he had been awarded it in the divorce proceedings.

18. The position of CAB is that neither Y nor Z, nor X had, based on Revenue and Social Welfare records, income to support the purchase and more particularly the expensive renovation of the Property. In addition, according to CAB, the Revenue and banking records do not support or demonstrate any consistent pattern of rent being paid by X to either Y or Z in respect of the Property. Such sporadic evidence of rent as does exist

appears to arise in and around the time of the search of the hotel room in early 2019 and the commencement of this particular CAB investigation.

19. Finally, the Detective Garda explains how the Family Law Proceedings “are highly relevant to the within proceedings but have not been exhibited at this time” and that “a copy of the documents will be available in court for the Section 2 application”.

20. As explained above in the Introduction to this judgment, extracts from the Family Law Proceedings were handed in to Court at the hearing of the section 2 application and were relied upon by CAB to support the application. Those documents, along with all the other material, were relied upon by this Court in making the section 2 order on the

19 November 2025.

21. The position of CAB at the section 2 application stage was that, if the section 2 order was made, they would then apply on notice to Y and Z to the Circuit Court or to the High Court to lift the in camera rule in relation to the Family Law Proceedings and for permission to refer to extracts from the Family Law Proceedings in the section 3 application against X.

22. Consequently, the Court directed that Y and Z be notified of the making of the section

2 order and that no reference to substantive contents of the Family Law Proceedings was to be made in the papers served on X at that stage.

23. As indicated above in the Introduction to this judgment, when the matter was listed before this Court on the 9 December 2025 (the first return date after the ex parte application) there was no appearance by or behalf of either X or Z, but Y was legally represented and indicated that he wished to challenge the proposal to refer to his Family Law Proceedings. The directions given on that date then set up the hearing that took place on the 19 December 2025.

III. THE CIRCUIT COURT APPLICATION MADE EX PARTE ON 2 MAY 2024

24. At the hearing on the 19 December 2025, the papers that supported the ex parte application to the Circuit Court by CAB on 2 May 2024 were put before the Court. It was explained by Counsel for CAB that this was apparently the first occasion in which CAB had applied to the courts for access to family law papers. Apparently, an initial application by a member of an Garda Síochána had been made to the Circuit Court and the Circuit Judge directed that the application should be made by a legal team for CAB.

The application was then made on foot of an Ex Parte docket filed on the 13 April 2024.

This sought, in effect, ex parte access for CAB to the Family Proceedings of Y and Z.

25. The application was supported by an affidavit of a Detective Superintendent who is also a Bureau Officer of CAB. This affidavit set out a summary of the CAB investigation in relation to X and the Property and stated that “[o]n foot of enquiries carried out to date it is reasonably suspected that [X] is the true beneficial owner of the [Property]”.

The affidavit explained that the Property had been searched in 2019 and that X had been found to be residing in it. The affidavit also explained that both Y and Z had both been interviewed about the matter.

26. The reason given for the application was then stated to be “in order to establish how the ownership of [the Property] was dealt with – if at all – in the context of the [Family Law Proceedings].” No reason was set out in the affidavit as to why the application should be made ex parte nor was there any overt reference in either the ex parte docket or in the affidavit as to a legal basis for the orders sought.

27. The ex parte application on foot of these papers was then made to the Circuit Court on

2 May 2024. The application was granted and the record of the Order states:-

“The Court Doth Order

An Order pursuant to Section 41 of the Data Protection Act 2018 permitting the Criminal Assets Bureau to take up a copy of the court file in the divorce proceedings between Z and Y from 2021 or thereabouts excluding any Affidavit of Welfare.”

28. On foot of that Order, CAB was provided with the Family Law Civil Bill, various affidavits of Y and Z including affidavits of means of both Y and Z and the terms of the consent divorce.

IV. SUBMISSIONS

CAB’s Submissions

29. The Court had the benefit of very helpful written and oral submissions from Counsel for CAB. In particular Counsel for CAB engaged in a very constructive manner with the Court in the context of grappling with, what appears to be, a unique scenario that has arisen in the landscape of CAB’s legal applications.

30. CAB’s submissions couched this application as one seeking to lift the in camera rule in family law proceedings in aid of the prosecution of these proceedings by CAB against X pursuant to the POC Acts.

31. Firstly, it was essentially conceded in oral submissions, that the provisions of the Data Protection Act did not in fact provide a sound legal basis for the Order made by the Circuit Court judge. It was explained that section 41 of the Data Protection Act is typically relied upon by officers of CAB in seeking information from banks or other third parties in the context of conducting their investigations. However, it was accepted that this provision would not have entitled the Circuit Court judge to make the order sought.

32. Next, it was submitted that the Circuit Court did however have an inherent jurisdiction to make the order made on the 2 May 2024. However, no authority for this proposition was advanced and ultimately it seemed that CAB conceded that the Circuit Court probably did not have an inherent jurisdiction to make the order that was made.

33. Next, it was submitted that, essentially irrespective of the position of the Circuit Court, the High Court had a jurisdiction, either inherent or pursuant to section 40 of the Civil Liability and Courts Act 2004, to make an order permitting CAB to now rely on the proposed extracts from the Family Law Proceedings. Particular reliance was placed on section 40(8) of the 2004 Act. It was also contended that Section 5(1)(a) of the Criminal Assets Bureau Act, 1996 covered investigative steps based on suspicion, not just after a belief had been formed.

34. It was submitted that, in so far as there may be a problem with the lawfulness of the order whereby CAB was provided with the material, the correct approach was to consider the matter by taking account of the principles described in CAB v Murphy [2018] 3 IR 640. On this analysis there was no strict exclusionary rule and no egregious breach of the rights of Y and Z such as to preclude CAB from relying on the material against X.

35. It was pointed out that the material was clearly relevant and that the application at this juncture was on notice to Y and Z and that their legitimate interests in keeping the details of their Family Law Proceedings private could be respected by the Court making an ongoing in camera order pursuant to section 8 (3) and (4) of the POC Acts in respect of the particular material. Y’s Submissions

36. On behalf of Y an Objection and Reply & Counterclaim was delivered. In addition, Counsel for Y provided very helpful written submissions and made very helpful oral submissions at the hearing.

37. Firstly, in the Counterclaim, Y sought, inter alia, damages for the alleged breach of Y’s constitutional and ECHR rights. These relate to the rights to privacy and family life and the asserted statutory right to have his Family Law Proceedings heard in camera.

However, while there was a general plea that the access to the Family Law Proceedings had caused Y “loss, damage and stress” there was no evidence to support this. Y did not attend the hearing and there was no application made that he should give evidence notwithstanding that this Court indicated that this could be facilitated.

38. Next, it was submitted that there had been no proper legal basis for the initial ex parte application to the Circuit Court. CAB was a creature of statute and there was no inherent or indeed express power on the part of CAB to seek to obtain this material which was otherwise protected by the statutory in camera rule. It was submitted that section 5(1)(a) of the Criminal Assets Bureau Act, 1996 as amended (which created CAB) did not authorise a breach of the in camera rule in family law proceedings.

39. Furthermore, it was submitted that there was no urgency or other good reason to justify the application having been made ex parte. In addition, the application to the Circuit Court had relied on “belief” evidence and, while that was permitted in the context of applications under sections 2 and 3 of the POC Acts, there was no statutory basis for it in the context of the unique application to the Circuit Family Court. Accordingly, the information had not been lawfully obtained and should not be admissible in the CAB proceedings in relation to the Property.

40. Next, it was submitted that the provisions of section 40 of the Civil Liability and Courts Act 2004 did not benefit the Applicant here. It was said that there was no provision for an ex parte application.

41. Consequently, it was submitted that the rights of Y were violated by CAB without Y having been heard, which was a contravention of the general principles set out by the Supreme Court in Dellway v NAMA [2011] 4 IR 1. It was contended that, given the particular statutory footing of CAB, any excess of action should be restrained or corrected by the High Court. The Supreme Court decision in Murphy v GM [2001] 4 IR 113 was referred to in this context.

42. Finally, it was submitted that CAB should be able to make its case without this material and that it was overtly prejudicial and disproportionate to the legitimate interests of Y and Z to have to disclose this material, especially where they are not the named respondents to the CAB proceedings under the POC Acts.

V. RELEVANT LEGAL PRINICPLES

(i) Relevant Statutory provisions

43. The in camera rule in family law proceedings is grounded in statutory provisions:-

Section 38 of the Family Law (Divorce) Act 1996

“38. (1) Subject to the provisions of this section, the Circuit Court shall, concurrently with the High Court, have jurisdiction to hear and determine proceedings under this Act and shall, in relation to that jurisdiction, be known as the Circuit Family Court.

…

(5) Section 32 of the Act of 1989 shall apply to proceedings under this Act in the Circuit Family Court and sections 33 to 36 of that Act shall apply to proceedings under this Act in that Court and in the High Court.”

Section 34 of the Judicial Separation and Family Law Reform Act, 1989

“34. Proceedings under this Act shall be heard otherwise than in public.”

44. The application of section 38 of the 1996 Act however has been modified by section 40 of the Civil Liability and Courts Act, 2004 (as amended) in a number of respects, some of which are potentially relevant to the issues being considered here.

Section 40 of the Civil Liability and Courts Act, 2004 (as amended)

Under the heading “Proceedings heard otherwise than in public”, section 40 of the 2004 Act in the relevant subsections (as amended up to 31 July 2023) provides as follows:-

“(6) Nothing contained in an enactment that prohibits proceedings to which the enactment relates from being heard in public shall operate to prohibit the production of a document prepared for the purposes or in contemplation of such proceedings or given in evidence in such proceedings, to—

(a) a body or other person when it, or he or she, is performing functions under any enactment consisting of the conducting of a hearing, inquiry or investigation in relation to, or adjudicating on, any matter, or

(b) such body or other person as may be prescribed by order made by the Minister, when the body or person concerned is performing functions consisting of the conducting of a hearing, inquiry or investigation in relation to, or adjudicating on, any matter as may be so prescribed.

(7) Nothing contained in an enactment that prohibits proceedings to which the enactment relates from being heard in public shall operate to prohibit the giving of information or evidence given in such proceedings to—

(a) a body or other person when it, or he or she, is performing functions under any enactment consisting of the conducting of a hearing, inquiry or investigation in relation to, or adjudicating on, any matter, or

(b) such body or other person as may be prescribed by order made by the Minister, when the body or person concerned is performing functions consisting of the conducting of a hearing, inquiry or investigation in relation to, or adjudicating on, any matter as may be so prescribed.

(7A) The leave of a court shall not be required for—

(a) the production of a document in accordance with subsection (6), or

(b) the giving of information or evidence in accordance with subsection (7).

(8) A court hearing proceedings under a relevant enactment shall, on its own motion or on the application of one of the parties to the proceedings, have discretion to order disclosure of documents, information or evidence connected with or arising in the course of the proceedings to third parties if such

disclosure is required to protect the legitimate interests of a party or other person affected by the proceedings.

(9) A hearing, inquiry or investigation referred to in subsection (6) or (7) shall, in so far as it relates to a document referred to in subsection (6) or information or evidence referred to in subsection (7), be conducted otherwise than in public and no such document, information or evidence shall be published.

(10) This section shall apply to proceedings brought, and decisions of a court made, whether before or after the commencement of this section.

(11) In subsection (3), "relevant documents", in relation to any proceedings referred to in that subsection—

(a) subject to paragraph (b), means—

(i) the petition, summons or other originating document in the proceedings,

(ii) pleadings and other documents (including the terms of settlement, if any) produced to or lodged with the court, or included in the book of pleadings, in the course of the proceedings, and

(iii) any order made by the court in the proceedings,

(b) does not include any document the contents of which are expressed to be without prejudice or in terms having a like effect.”

45. In the context of the statutory remit of CAB, reference was made to section 5(1)(a) of the CAB Act, 1996 which provides:-

“5.—(1) Without prejudice to the generality of section 4 , the functions of the Bureau, operating through its bureau officers, shall be the taking of all necessary actions—

(a) in accordance with Garda functions, for the purposes of, the confiscation, restraint of use, freezing, preservation or seizure of assets identified as deriving, or suspected to derive, directly or indirectly, from criminal activity,”

46. Finally, in the context of the Circuit Court Order, reference was made to section 41 of the Data Protection Act, 2018.

Section 41 of the Data Protection Act 2018 provides:-

Processing for purpose other than purpose for which data collected

“41. Without prejudice to the processing of personal data for a purpose other than the purpose for which the data has been collected which is lawful under the Data Protection Regulation, the processing of personal data and special categories of personal data for a purpose other than the purpose for which the data has been collected shall be lawful to the extent that such processing is necessary and proportionate for the purposes—

(a) of preventing a threat to national security, defence or public security,

(b) of preventing, detecting, investigating or prosecuting criminal offences, or

(c) set out in paragraph (a) or (b) of section 47.”

(ii) Relevant Caselaw

47. The two principal cases referred to in submissions concerned the interpretation of section 40 of the Civil Liability and Courts Act, 2004 (as amended) (“section 40 of the 2004 Act”). These case are SM v SL [2022] IEHC 449, the decision of Butler J. and AX v BX [2023] IECA 109, the judgment of Collins J. for the Court of Appeal. In addition, reference was made to the Supreme Court decision in CAB v Murphy [2018] 3 IR 640, in the context of submissions that developed at the hearing around the admissibility of evidence obtained illegally.

48. In SM Butler J. considered whether an application under section 27(4) of the Succession Act 1965 for the liberty to apply for letters of administration in respect of an estate could be heard in camera when it involved matters originating from family law proceedings. Butler J. makes some helpful observations about the in camera rule in family law cases generally; see para. 21 where Butler J. states as follows:-

“There is also no doubt that family law proceedings in general have been properly afforded the protection of an in camera hearing by statute both in the interests of the family as protected under article 41 of the Constitution and to protect the unenumerated right of the individual to dignity and to privacy. The application of the in camera rule to all such proceedings has not been without adverse comment. In circumstances where marital breakup is now relatively common and the fact that spouses separate or divorce is no longer a matter of public scandal, the need to have this category of case heard exclusively behind closed doors such that the public does not have a realistic understanding of how the courts approach family law matters has been questioned by academics and others. Nonetheless the understanding that “family law matters” will and should be dealt with in camera remains deeply ingrained. The spouse has pointed to a number of decisions where a separation agreement was impugned in plenary proceedings on classic contractual and equitable grounds and yet the in camera rule was applied without comment (see ( W. v W. Unreported, High Court, 10 April 1978) and L.M. v M. [1994] 2 Fam. L.J. 60 (Supreme Court)).” (underlined for emphasis)

49. Then at para. 24 Butler J. continues her consideration of the in camera rule in family law cases generally and observes as follows:-

“As against this, the protection afforded to family law litigants both generally under section 45 of the 1961 act and specifically the family law legislation cited by the parties is not one of which the litigants must positively choose to avail in each individual case. Equally it is not a protection which the courts, exercising their family law jurisdiction, can readily choose to grant or withhold in individual cases. Rather it applies generally to all such litigation regardless of the attitude of the individual litigant and regardless of the view the court might take as to the conduct of the litigants or the merits of the case. The spouse has drawn the court's attention to a number of cases in which the in camera rule was relaxed pursuant to section 40(8) of the Civil Liability and Courts Act 2004. This provision allows a court which is hearing an in camera matter pursuant to statute to order disclosure of documents, information or evidence connected with or arising in the course of the proceedings to third parties ‘ if such disclosure is required to protect the legitimate interests of a party or other person affected by the proceedings’. These cases are interesting because they show how courts have grappled with the competing interests to be served on the one hand by the maintaining of confidentiality of certain types of proceedings and, on the other, by allowing certain persons who are not parties to those proceedings access to material for other legitimate purposes. However, some caution needs to be exercised as the issues involved in those cases are largely the obverse of this as the lifting of the in camera rule is, broadly speaking, consistent with the principle that justice should be administered in public whereas the exclusion of the public from a hearing which would otherwise be held in public might be regarded as a move away from that principle.”

(underlined for emphasis).

50. In SM Butler J. considers section 40(6), (7) and (8) of the 2004 Act. It should be noted that the judgment in SM was delivered on 11 July 2022, which was before the inclusion of subsection 7A into section 40 by section 56 of the Courts and Civil Law (Miscellaneous Provisions) Act 2023 on the 31 July 2023. Subsection 7A (set out above) makes it clear that section 40(6) and (7) allow for the production of a document or evidence from, for example, family law proceedings, to be done without leave of a court. This amendment confirms the interpretation of these provisions as set out in the judgment of Butler J. in SM and of Collins J. of the 5 May 2023 for the Court of Appeal in AX v BX [2023] IECA 109; see para. 18 thereof in particular where Collins J. in turn approves of the analysis of Butler J. in SM.

51. Butler J. then sets out her analysis of those subsections of section 40 (as then in force)

from para.s 29 to 34 of her judgment. In para. 29 Butler J. draws attention to the question as to whether the High Court exercising inherent jurisdiction constitutes a “body … performing functions under statute” for the purposes of section 40(6) and (7).

Ultimately, she leaves that question over for another day. In para. 29 of SM Butler J.

states as follows:-

“29. Taken in the round, section 40 permits the use of documents (sub-section 6) and information or evidence (sub-section 7) prepared for or given in evidence at an in camera court hearing to be produced or given to bodies or persons performing functions under statute which involve inter alia the conduct of a hearing or the adjudication of any matter. The section has clearly been drafted with a focus on material originating before the courts in in camera proceedings being used by bodies which are not courts for the purposes of statutory investigation or decision-making. In order to come within the section, the body or person concerned must either be performing a statutory function or be prescribed by Ministerial Order. Whilst it is likely that in exercising the jurisdiction to make order under section 27(4) of the Succession Act 1965 a High Court Judge is a “body or person” adjudicating on a matter under statute, it is not invariably the case that in exercising its full original jurisdiction the High Court would come within the terms of these sub-sections. However, in circumstances where I am satisfied that the jurisdiction being exercised for the purposes of this application can be brought within section 40, I will leave over to another case the question of whether the High Court has of its own motion an inherent power to receive material having its origin in in camera proceedings before the District or Circuit Court.”

52. In para. 30 of SM Butler J. turns to the interesting question as to whether or not the High Court has an inherent jurisdiction to direct the lifting of the in camera rule, separate to or parallel to the statutory jurisdiction contained in section 40(8) of the 2004 Act. At para. 30 Butler J. states:-

“30. I have specifically raised the issue of whether the High Court has such an inherent power exercisable of its own motion because under section 40(8) the court with seisin of the in camera proceedings has a separate statutory power to order the disclosure of documents, information or evidence connected with those proceedings to third parties. Again, it seems likely that the third parties on whom the section is focused are envisaged as legal or natural persons whose interests may be affected by the contents or the outcome of the in camera proceedings. This begs the question as to whether the High Court can be a ‘third party’ for the purpose of the receipt of such material from another court. Again, as no order under section 40(8) has been asked of or made by the courts of trial, and the material in this application has been put before the High Court by the parties to the application it is not necessary for me to resolve this issue.”

53. Then, in para. 31 of SM Butler J. considers whether or not a Court order is necessary to engage section 40(6) and (7). She concludes that a court order is not necessary (the new subsection 7A and the Court of Appeal decision in AX remove any doubt about this issue in favour of Butler J.’s interpretation). At para. 31 Butler J. states:-

“31. There is also a question as to the extent to which the permitted use of material under sub-sections (6) and (7) is dependent on the court with seisin of the case having made an order permitting the disclosure of the in camera material under sub-section (8). Both parties to this application have pragmatically submitted that as the High Court has full original jurisdiction under the Constitution, it can receive and use in camera material generated before a lower court without the formal consent of the lower court being required. Without any disrespect to the judges of the District and Circuit Courts who have seisin of these in camera cases, I think this must be correct. It is of course entirely appropriate that an application be made to the trial judge in circumstances where the material is being disclosed to a person who is not a judge or a body which is not court. This ensures that the trial judge can supervise the protection of the interests for which the in camera rule applied to the proceedings in the first place. It is not however necessary in the case of the High Court which itself has jurisdiction to consider all of the constitutional interests involved and to take steps ensure that they are appropriately protected.” (underlined for emphasis)

54. It will be necessary to return to the issue of the extent of the High Court’s jurisdiction to make an order, either under section 40(8) of the 2004 Act or pursuant to its inherent jurisdiction later in this judgment.

55. Butler J. then sets out her reasoning in relation to the particular issue in SM in para.s 32 to 35. As can be seen, she decides that the High Court could receive the material through section 40(6) and (7) of the 2004 Act. This decision arises in the context where the parties to the in camera family law proceedings had already put references to the in camera family law proceedings on affidavit in the Succession Act proceedings being dealt with by Butler J. At para.s 32-35 Butler J. states as follows:-

“32. Two factors lead me to conclude that in any event there is no mandatory obligation to have received material pursuant to sub-section (8) in order to be able to use it under sub-sections ( 6) or (7). Firstly, the text of the sub-sections themselves do not create such a link and, in my view, a limiting pre-condition should only be read in to the text if it were necessary to give practical effect to the section. Secondly, the sequencing of the subsections is potentially significant as, if it were intended that material which could be used under sub-sections (6) and

(7) had to be obtained through the mechanism in sub-section (8), then it might be expected that sub-section (8) would precede rather than follow sub-sections (6) and (7). Instead, it seems that section 40 establishes two different pathways through which in camera material might become available and be used outside the parameters of the case in which it originated. One relates to the use which might be made of the material by persons or bodies exercising particular functions and the other relates to the legitimate interest of the person to whom the material is disclosed.

33. Crucially, under sub-section (9) any hearing in which in camera material is to be used pursuant to sub-sections ( 6) or (7) must itself be conducted ‘otherwise than in public’ insofar as it relates to that material. There is also a prohibition on the publication of in camera material released through the mechanism of sub-sections ( 6) or (7). Perhaps surprisingly, there are no equivalent statutory restrictions placed on material released by a court pursuant to sub-section (8). It may be that the court directing the release of such material has an implied jurisdiction to attach conditions to such release to ensure that the interest protected by the in camera hearing is not damaged to any greater extent than necessary to protect the legitimate interest of the party concerned.

34. Taking all of these factors into account I am satisfied, at a minimum, that when exercising its jurisdiction pursuant to section 27(4) of the Succession Act, 1965 the High Court can receive documents, information and evidence relating to in camera proceedings before the

District and Circuit Courts pursuant to section 40(6) and (7) of the 2004 Act. I am also satisfied that the hearing of the application insofar as it relates to this material should be in camera and that there should be no subsequent publication of that material and I will make an order to this effect if required.”

56. The Court of Appeal then considered the provisions in section 40 of the 2004 Act in AX v BX [2023] IECA 109. In AX the Court had to address the circumstances in which material from an in camera family law case might be provided to the Solicitors Disciplinary Tribunal (the “SDT”) and to the LSRA amongst others. In summary Mr.

X had made a complaint to the SDT alleging professional misconduct against the solicitors acting for Ms X. In support of his complaint, Mr. X provided the SDT with documents and/or information relating to the family law proceedings which was in the ordinary course assumed to be covered by the in camera rule (save perhaps for the provisions of section 40 of the Civil Liability and Courts Act 2004). Mr. X also made complaints to a number of other bodies including the LSRA. Mr. X sought the Court’s permission to provide an unredacted version of the Court's judgment to the SDT and also to the LSRA. While Ms. X opposed the disclosure to the LSRA, she did not object to the proposed disclosure to the SDT. In fact, her solicitors also wished to provide the judgment to the SDT. In addition, the solicitors for Ms. X asked the Court to permit them to provide the judgment to their professional indemnity insurers, to whom (with the permission of the High Court) they had previously disclosed Mr. X's complaints against them.

57. In that context, in para. 14 Collins J. addresses section 40(6) and (7) and states as follows:-

“14. Divorce proceedings are required to be heard otherwise than in public by virtue of section 38(5) of the Family Law (Divorce) Act 1996, which applies section 34 of the Judicial Separation and Family Law Reform Act 1989 to such proceedings. Section 34 (as applied by section 38(5) of the 1996 Act) is therefore “ an enactment that prohibits proceedings to which the enactment relates from being heard in public”. The effect of section 40(6) of the 2004 Act appears to be that nothing in section 34 of the 1989 Act “shall operate to prohibit the production of a document prepared for the purposes or in contemplation of such proceedings or given in evidence in such proceedings” to “ (a)

a body or other person when it, or he or she, is performing functions under any enactment consisting of the conducting of a hearing, inquiry or investigation in relation to, or adjudicating on, any matter or (b) such body or other person as may be prescribed by order made by the Minister, when the body or person concerned is performing functions consisting of the conducting of a hearing, inquiry or investigation in relation to, or adjudicating on, any matter as may be so prescribed.” Section 40(7) operates in the same way as regards the giving of information or evidence given in such proceedings to such a body.”

58. Then at para.s 18 and 20 Collins J. endorses the analysis of Butler J. in SM and states as follows:-

“18. In this context, section 40(6) and section 40(7) appear to be selfexecuting and do not appear to be — and certainly are not expressed to be — conditional upon any prior court order or permission. In that regard, those sub-sections stand in marked contrast to section 40(8) of the 2004 Act. Section 40(8) gives a court that is hearing proceedings under a “ relevant enactment” a “ discretion” to order disclosure to third parties, if such disclosure is required to protect the legitimate interests of a party or other person affected by the proceedings. The persons to whom, and the purposes for which, such disclosure may be directed under section 40(8) differ significantly from section 40(6) and section 40(7). There appears to be nothing in section 40(6) and section 40(7) to suggest that the production that they authorise is conditional on the making of an order under section 40(8). If that were the case, section 40(6) and section 40(7) would serve no useful purpose and would effectively be entirely otiose.

20. In SM v SL [2022] IEHC 449, the High Court (Butler J) expressed the view that section 40 established “two different pathways through which in camera material might become available and be used outside the parameters of the case in which it originated” (at para 32). In his judgment, Barrett J expresses his disagreement with her analysis but does not otherwise engage with it. Butler J's analysis of section

40 appears to be consistent with its language and structure. It is, of course, a fundamental rule of statutory interpretation that one should not look at sections and sub-sections of an enactment in isolation.”

59. Finally, reference was made during the submissions to what is known as the “exclusionary rule” as set out by the Supreme Court in DPP v JC [2017] 1 IR 417 and the subsequent analysis of that rule and its underlying principles in CAB v Murphy [2018] 3 IR 640. In CAB v Murphy the Supreme Court was considering what was described as “the wide public importance of clarifying the law on whether any rule as to the exclusion of evidence which is illegally or unconstitutionally obtained is applicable in civil proceedings”; see para. 7 of the judgment of O’Malley J.

60. In para. 43, O’Malley J. sets out a description of the “real question” before the Court in Murphy, stating as follows:-

“The real question is whether the fact that the cash was seized on foot of an invalid warrant has any consequences in the litigation between these parties.

Consideration of that question requires, firstly, an examination of the rationale underlying the exclusionary rule. It is also necessary to look at decisions of this court concerning the impact upon litigation, other than criminal trials, of a breach of an individual's rights by an agent of the State – this includes an examination of the classification of 1996 Act cases as in rem. The purpose here is not to reconsider the formulation of the test for the exclusion of improperly obtained evidence, but to discern the principles underlying the existence of such a rule and the extent to which those principles have been found to be applicable in the administration of justice.” (underlined for emphasis).

61. The Court’s conclusions in Murphy are then set out from para. 125 onwards. Of particular importance are what O’Malley J. states in para 125 and 126 as follows:-

“[125] Having regard to the range of Irish authorities cited above, it seems clear that the exclusionary rule is not a free-standing rule that evolved or exists purely for the benefit of defendants in either criminal or civil proceedings. While it originated in the context of a criminal trial (The People (Attorney General) v. O'Brien[1965] I.R. 142), its broader purpose is to protect important constitutional rights and values. It will have been seen that, at different times and dealing with different issues, individual judges have laid greater or lesser emphasis on particular aspects of those rights and values. However the common themes are the integrity of the administration of justice, the need to encourage agents of the State to comply with the law or deter them from breaking it, and the constitutional obligation to protect and vindicate the rights of individuals.

These are all concepts of high constitutional importance. Each of them, or a combination thereof, has been seen as sufficient to ground a principle that is capable of denying to the State or its agents the benefit of a violation of rights carried out in the course of the exercise of a coercive legal power.

[126] These rights and values are not confined to criminal trials and their effect is not confined to the exclusion of evidence.” (underlined for emphasis).

62. O’Malley J. then describes the application of these principles to the particular scenario involved in Murphy from para.s 133 to 140 in particular. It should be noted that the question at issue is somewhat different to that involved in these proceedings. At para.s 133-140 O’Malley J. states as follows:-

“[133] It seems to me, therefore, that the constitutional values primarily under consideration will be the integrity of the administration of justice and the need to ensure compliance with the law by agents of the State. It is possible to envisage circumstances that would lead a court to conclude that, per Denham

J. at p. 428 in Lynch v. Attorney General[2003] 3 I.R. 416, the proceedings should be nullified. This is not an unprecedented proposition in cases under the 1996 Act – the High Court has in the past been known to discharge the interim order and dismiss the proceedings because of a failure to disclose relevant information at the ex parte stage. That can be seen as an appropriate response to abuse of the court's process, and also as a means of vindicating the respondent's right to fair procedures.

[137] Where the issue is raised, the Bureau must bear the burden of establishing on the balance of probabilities that (i) the asset was not seized in circumstances of unconstitutionality, or (ii) that, if it was, it is appropriate nonetheless to make the order sought. In the latter case it is for the Bureau to explain the basis upon which it contends that the order should be made, and to establish any facts necessary to justify such conclusion.

[138] A respondent should be entitled to rely only upon a breach of his or her own rights, unless the court is satisfied that the breach of another person's rights is so egregious as to justify dismissing the proceedings. Other than in those circumstances, breach of the rights of a third party who is not a respondent should not give rise to a refusal of the order – there is no good reason, given the statutory scheme, why a breach of A's rights should entitle B to retain the proceeds of crime unless the breach is such as to call into question the integrity of the administration of justice.

[139] Similarly, where there is more than one respondent claiming legitimate ownership of the asset, and the constitutional breach affects only one, or at least not all, the court should not refuse an order unless the breach is such as to justify dismissal of the proceedings.

[140] It may be that application of these principles will leave unredressed a breach of rights unrelated to the property in question. The affected party will be left with the option of instituting proceedings for such damages.”

VI. DECISION

63. The first issue to consider is whether or not the Circuit Court Order of 2 May 2024 was lawfully made. On the face of the Order it is stated that it is made pursuant to section

41 of the Data Protection Act, 2018. Section 41 of the Data Protection Act, 2018 does not provide for a jurisdiction to override the statutory in camera rule provided for in section 38(5) of the Family Law (Divorce) Act, 1996. Counsel for CAB accepted this during oral submissions.

64. Equally, I am satisfied that there is no inherent jurisdiction in the Circuit Court to override the statutory in camera rule. No authority for such a proposition was advanced and it would be contrary to principle to consider that the Circuit Court, which is a court of limited and local jurisdiction governed by legislation, had an inherent power to override an explicit statutory protection given to family law proceedings.

65. Accordingly I am satisfied that the Circuit Court Order of 2 May 2024 was not lawfully made.

66. I now turn to consider whether it should be set aside pursuant to the High Court’s inherent jurisdiction. While the Order in question was made more than eighteen months prior to the hearing of this issue, Y and Z (the parties to the Family Law Proceedings)

only became aware that the Circuit Court Order was made in late November 2025 at the earliest. By that time, their private family law information had been obtained by CAB without their knowledge and had been relied upon in the forming of the opinion of CAB that grounded the ex parte application made to the High Court pursuant to section 2 of the POC Acts.

67. In addition, as Butler J. states in SM at para. 24 “the protection afforded to family law litigants … is not one of which the litigants must positively choose to avail in each individual case. Equally it is not a protection which the courts, exercising their family law jurisdiction, can readily choose to grant or withhold in individual cases. Rather it applies generally to all such litigation regardless of the attitude of the individual litigant and regardless of the view the court might take as to the conduct of the litigants or the merits of the case.”

68. The statutory entitlement of Y and Z to the benefit of the in camera rule has been lost without their knowledge on foot of an ex parte application by CAB that was not correctly or properly grounded in any legal basis.

69. In addition, no good reason was advanced by or on behalf of CAB for making the application to the Circuit Court on an ex parte basis. None was set out in the Affidavit grounding the application. Firstly, there was no urgency. Secondly, while it was suggested in oral submissions that family law proceedings might be used to “mask” a “money laundering transaction” there was however no evidence to support this in the context of this case. Furthermore, this was not put forward as a reason for the application in the grounding affidavit of CAB relied upon before the Circuit Court.

Next, while Counsel for CAB made general observations as to why information might be sought as part of a CAB investigation without “tipping off” the persons whose information is involved, none of those scenarios (leaving aside the absence of any evidence to support such scenarios) plausibly applied here. To begin with, both Y and Z (and indeed X) were already aware that there was a CAB investigation in relation to the Property. In addition, there was no plausible basis for suggesting that either Y or Z (or even X) could have interfered with the information prior to an inter partes hearing.

Counsel for CAB indicated that it was not being suggested that either X, Y or Z had “Mission Impossible” type capabilities to have gained access to and then altered the Circuit Family Court files before an inter partes hearing. Accordingly, leaving aside the more fundamental questions around whether there is any statutory basis for CAB to apply for access to in camera materials from family law cases, there was no good reason for it to have been done on an ex parte basis in this case. This is not simply a procedural or technical concern. By virtue of the application having been made and having succeeded on an ex parte basis, private materials from the Family Law Proceedings protected by the statutory in camera rule were disclosed to CAB without the knowledge of Y and Z.

70. The statutory in camera rule in question is an important one. It is designed to protect the interests of the family and the rights of individuals to dignity and privacy. While the information obtained in this case may have been ultimately somewhat mundane, CAB were not to know that when they made the application on an ex parte basis.

71. In addition, I take into account that CAB itself is a creature of statute with significant and far reaching existing statutory powers that have been specifically assigned to it by legislation. These powers are sometimes referred to as “draconian powers”; see the judgment of Murray J. in CAB v Routeback Media [2025] IESC 34. While the legislation has survived numerous challenges brought against it by reference to the Constitution and the ECHR, it is appropriate to be vigilant to any scenarios where CAB exceeds the express statutory powers it has been given.

72. CAB applied ex parte to the Circuit Court on 2 May 2024 relying on section 41 of the Data Protection Act 2018 to seek to lift the in camera protection afforded to family law proceedings. It is clear that there was no statutory basis for this application contained in the Data Protection legislation. Section 5(1)(a) of the CAB Act 1996 clearly also does not give CAB the power to access family law files contrary to the statutory in camera rule. I will consider further hereunder whether such an application, either ex parte or inter partes, could have been made under section 40(8) of the 2004 Act.

73. However, based on what occurred in this case, I am satisfied that the Circuit Court Order of 2 May 2024 should be set aside.

74. The next issue is to then consider what impact this has on these current proceedings and the subsequent section 2 application and Order made by this Court on the 19 November 2025. In considering this issue, it is necessary to look at the overall context and consider what role section 40 of the 2004 Act might play in this context.

75. Firstly, it is clear from the decisions in SM and AX that sections 40(6) and (7) do not apply here to this application where CAB seeks to apply to Court for the release of the information to X. The Points of Claim make clear that section 40(8) is relied upon. This is consistent with the approach indicated by the case law described above. As Collins

J. makes clear in AX at para. 18, subsection (6) and (7) are designed to apply without any court order. In other words those subsections are in general more likely to apply in a scenario where one of the parties to the family law proceedings provides a document or information to one of the bodies described in subsections (6) and (7).

76. Turning then to section 40(8) which provides:-

“(8) A court hearing proceedings under a relevant enactment shall, on its own motion or on the application of one of the parties to the proceedings, have discretion to order disclosure of documents, information or evidence connected with or arising in the course of the proceedings to third parties if such disclosure is required to protect the legitimate interests of a party or other person affected by the proceedings.”

77. It is clear that the “court” referred to in the factual context of this case is the Circuit Family Court which dealt with the divorce proceedings (being the proceedings under “a relevant enactment”).

78. In a case such as this, the Circuit Family Court can accordingly, either of its own motion, or on the application of one of the parties to those proceedings (i.e. the circuit family law proceedings) decide “to order disclosure of documents, information or evidence connected with or arising in the course of the proceedings to third parties if such disclosure is required to protect the legitimate interests of a party or other person affected by the proceedings”; underlined for emphasis.

79. Bearing in mind that the rights of the parties to the proceedings are likely to be affected by an order under section 40(8), it is difficult to see how this provision contemplates an order being made without the knowledge of the parties to the proceedings and without those parties being given an opportunity to be heard before such an order is made. I reach this conclusion for two interconnected reasons. Firstly, section 40(8) refers to the order being made either, by virtue of the relevant court’s “own motion”, or “on the application of one of the parties”. It is hard to conceive of circumstances where a court would make an order in a case of “its own motion” without any notice to the parties in the case. Secondly, for a court to direct disclosure of documents or information from family law proceedings that have been held in camera creates a likelihood of a decision that will affect the rights of one or both of those parties and therefore creates a situation where the parties affected should be heard; see Dellway v Nama [2017] 4 IR 1 where the Supreme Court held that in general the test for assessing whether fair procedures required a person to be heard before a decision was made was whether or not a person's rights were affected by the proposed decision and that a person, whose interests were capable of being directly affected in a material way by a decision, should be allowed to put forward reasons as to why the decision should not be made or that the decision not take a particular form, even if that decision was justified in the interests of the common good.

80. CAB contend that as Y and Z are both now on notice of the application to deploy material from their Family Law Proceedings, that this Court can consider exercising the power afforded to the Circuit Court by section 40(8). In addition, in that regard, CAB contend that the High Court has an inherent power to make such an order and CAB relies on what Butler J. states in para. 31 of SM where she states:-

“Both parties to this application have pragmatically submitted that as the High Court has full original jurisdiction under the Constitution, it can receive and use in camera material generated before a lower court without the formal consent of the lower court being required. Without any disrespect to the judges of the District and Circuit Courts who have seisin of these in camera cases, I think this must be correct. It is of course entirely appropriate that an application be made to the trial judge in circumstances where the material is being disclosed to a person who is not a judge or a body which is not court. This ensures that the trial judge can supervise the protection of the interests for which the in camera rule applied to the proceedings in the first place. It is not however necessary in the case of the High Court which itself has jurisdiction to consider all of the constitutional interests involved and to take steps ensure that they are appropriately protected.”

81. However, a few observations are required. Firstly, in SM both parties appear to have accepted the legal position that the High Court, where it was not the court that had heard the relevant proceedings, could receive the material without any application to the court that heard the substantive in camera proceedings. Accordingly there was no substantive argument on the issue as to whether the High Court could exercise the power described in section 40(8) despite not being the “court hearing proceedings under a relevant enactment” or whether it had an inherent jurisdiction of a parallel nature. That caveat carries more concern where the issue involves a question that can raise difficult arguments of principle as to the High Court’s inherent jurisdiction on an issue that the Oireachtas has specifically legislated for. Secondly, the application here is not strictly to release the information to the High Court. Rather the application is, in its formal terms, to release the information from the Family Law Proceedings to X (see “Orders Sought” at para. 20 of CAB’s Points of Claim). In the alternative, and at best, it could be characterised as an application to retrospectively authorise or validate the release of the information and documents to CAB, a statutory body, so that CAB can then release it to X and/or rely upon it against X in the section 3 proceedings. However, in that regard, Butler J. says within the passage quoted above “It is of course entirely appropriate that an application be made to the trial judge in circumstances where the material is being disclosed to a person who is not a judge or a body which is not court.”

82. In addition, it is not clear, irrespective of the above problems, how CAB can satisfy the second part of subsection (8) and establish that the information proposed to be released from the in camera rule “is required to protect the legitimate interests of a party or other person affected by the proceedings”. The proceedings referred to in subsection 8 are, in this case, the Family Law Proceedings. It is not clear that the Family Law Proceedings have affected CAB in any way or, indeed, affected “the legitimate interests” of any other party, other than Y and Z. Nor is it clear, how access to the materials could be said to be “required” to protect the legitimate interests of CAB.

83. In all those circumstances I am not persuaded that it is appropriate to exercise either an assumed jurisdiction under section 40(8) of the 2004 Act or a parallel inherent jurisdiction to permit the release of the information.

84. Whilst, not necessary to decide the issue, I have in addition doubts as to whether section 40(8) permits a statutory body such as CAB to make an application on a speculative basis, even on notice, for access to documents or information from family law proceedings heard in camera. While sections 40(6) and (7) expressly modify the in camera rule by providing that, in the circumstances described, the rule shall not prohibit the giving of information or documents from in camera proceedings to a body, for example conducting a statutory inquiry, there is no explicit identification of any entitlement of such a body to apply to the relevant court in section 40(8). Section 40(8)

explicitly gives the court which has dealt with the in camera matter a “discretion” to order disclosure in two scenarios, either “on its own motion or on the application of one of the parties to the proceedings”; and in both of these scenarios, the discretion is subject to the proviso referred to above that the disclosure “is required to protect the legitimate interests of a party or other person affected by the proceedings.” There is a logic and coherence to limiting the entitlement in this manner. Of necessity, both the court which has heard the in camera case and the parties will be aware of the content of the documents, information and evidence given in those proceedings. One or both of the parties may decide or be requested to provide documents or information to a body, for example, conducting an inquiry under an enactment. If they do, and the requirements of subsections (6) and (7) are met, then, as subsection 7A makes clear, the leave of the court is not required. Where neither the court of “its own motion” nor “the parties to the proceedings” have made any application for disclosure, then it is not clear that section 40(8) permits any other body to make an application to lift the in camera rule. As demonstrated in this case, CAB’s ex parte application to the Circuit Family Court was speculative; in para. 7 of the grounding affidavit sworn on behalf of the CAB the deponent states that “in order to progress the investigation into the property [CAB] wishes to obtain a copy of the [Family Law Proceedings] in order to establish how ownership of this property was dealt with – if at all - in the context of the [Family Law Proceedings]”. Whereas, in the scenarios explicitly provided for in section 40(8), the court or the parties will be aware of the information in question and should not need to speculate to determine whether disclosure is required.

85. In addition, there is a further context relevant to this question of the extent of statutory powers afforded to CAB. As Murray J. states in para. 3 of his judgment in Routeback:-

“Although fairly described as conferring ‘draconian powers’, ‘ these are obviously powers which, in the view of the Oireachtas were necessary, given the serious problems with which the Act obviously was designed to deal’ ( F

McK v. FC [2001] 4 IR 521, 524 (per Keane CJ)). The legislation has thus survived numerous challenges brought to it by reference to the Constitution and the European Convention on Human Rights.”

While the Court can properly take the view that statutory powers granted to CAB have been considered by the Oireachtas to be necessary, notwithstanding the extensive range of significant statutory powers conferred on CAB there is no doubt that CAB has not been explicitly given any entitlement to make an application to have the in camera rule lifted.

86. This context is a further basis for not seeking to infer additional statutory powers, not expressly granted, which would significantly intrude on the rights of individuals, in this case, to keep the contents of their family law proceedings private.

87. In any event, in this case the original application for access to in camera material was made ex parte and without any reason for the application being made ex parte, and on a speculative basis.

88. As this issue connects to the related issue of the validity of the steps already taken to commence these proceedings, it is not strictly a question of considering the application of the “exclusionary rule”, albeit that the principles that underpin that rule are relevant.

Here, the material in question has already been relied upon for the initial belief evidence and was relied upon by this Court in making the section 2 Order and the order that commenced these proceedings.

89. This then leaves the question as to what effect the above analysis has on the making of the section 2 Order by this Court on an ex parte basis on the 19 November 2025. Firstly, the Court in making the section 2 Order relied for its reasons, in part, on the extracts from the Family Law Proceedings provided to the Court. In addition, the Court relied on the “belief” evidence of the Chief Bureau Officer, which was in turn explicitly stated to be, in part, based on how the Property was treated in the Family Law Proceedings.

Those materials were in the possession of CAB on foot of a Circuit Court Order that I am satisfied (for the reasons set out above) is legally infirm and should be set aside.

90. O’Malley J. helpfully sets out a summary of the principles underpinning the “exclusionary rule” in Murphy as follows at para.s 125-126 as follows:-

[125] … However the common themes are the integrity of the administration of justice, the need to encourage agents of the State to comply with the law or deter them from breaking it, and the constitutional obligation to protect and vindicate the rights of individuals. These are all concepts of high constitutional importance. Each of them, or a combination thereof, has been seen as sufficient to ground a principle that is capable of denying to the State or its agents the benefit of a violation of rights carried out in the course of the exercise of a coercive legal power.

[126] These rights and values are not confined to criminal trials and their effect is not confined to the exclusion of evidence.”

91. These principles carry weight in this context, where the legal infirmity to the obtaining of the family law materials goes to the very commencement of the proceedings. I have considered whether the more appropriate course would be to simply refuse the application made to include the proposed references to the Family Law Proceedings and to allow the section 3 application to move forward against X, and to simply await any challenge X may wish to bring, if any, arising out of the issues raised in this judgment. I am satisfied however, that on balance such an approach is less desirable both in principle and very possibly on a practical basis as well. Firstly, the materials formed a part of the “belief” evidence and formed a part of the reasons relied upon by this Court in making the section 2 Order. That is not to say that the “belief” would not have been formed anyway (it is not for the Court to say) or that a High Court judge would not have granted the section 2 order anyway even without the benefit of the Family Law Proceedings at all. Nonetheless this section 2 application and the section 2 Order made did rely on them. Secondly, on a pragmatic basis, these proceedings could become very legally bogged down going forward in the event that X were to challenge and/or to seek the discharge of the original section 2 order and the “belief” evidence as having been based on material that should not have been released to CAB in the context in which it was and/or to challenge the admissibility of the evidence, relying on the principles described in Murphy.

92. In all those circumstances and for those reasons, I consider that the appropriate order to make is to discharge the section 2 Order and related orders giving liberty to serve the

motion seeking relief pursuant to section 3 made by this Court on the 19 November 2025.

VII. CONCLUSION & FORM OF ORDERS

93. Accordingly, I am satisfied that the Circuit Court Order made on 2 May 2024 should be set aside.

94. Secondly, I refuse the application of CAB to refer to the Family Law Proceedings materials in the context of these proceedings, being the proceedings commenced by way of the application made on 19 November 2025.

95. Thirdly, I will discharge the Section 2 Order and the related Orders made on 19 November 2025, including the order giving liberty to issue and serve the section 3 motion.

96. These orders are made without prejudice to any future entitlement of CAB to be provided with information from the Family Law Proceedings properly pursuant to section 40.

97. In addition, these orders are without prejudice to the entitlement of CAB to continue to investigate X and/or, if they consider it appropriate, to initiate a further application pursuant to section 2 of the POC Acts in relation to the Property or the Designer Goods as against X.

98. Finally, as no evidence was adduced in support of the counterclaim for damages, I do not propose to make any orders on the counterclaim and the counterclaim is refused.

99. I will hear from the parties as to the form of the orders to be made and as to any other orders required, including as to costs.