‘Confidentiality club’ ordered in family-law case
Family and child law is becoming increasingly difficult and complicated, and practitioners need to keep abreast of an increasing volume of judgments, Gerard Durcan SC has said.
The barrister was giving an overview of case law at the Law Society Family and Child Law annual conference (25 September) and remarked that it was “quite extraordinary” how, in less than a year, the number of cases for review had almost doubled.
Ther SC began with the Supreme Court decision in M v M, which concerned whether Isaac Wunder orders, which are aimed at preventing abuse of process or vexatious litigation, could be made in family-law proceedings.
The Supreme Court unanimously held that such orders were permissible, and that they could be made not only by the High Court, but also by the Circuit and District Courts.
There was some difference between the Supreme Court judges as to how such orders would operate in the lower courts – including whether a Circuit Court order could operate nationwide or only within its own circuit.
The majority held that it could operate nationwide.
Connecting it to the Supreme Court’s 2025 judgment in Kirwan v Connors, Durcan said the decisions meant that the concept of the District and Circuit Courts as courts of local and limited jurisdiction, whose powers existed only where expressly conferred by statute, “simply has to be re-examined”.
He also flagged the Court of Appeal decision, C v B, which concerned non-party discovery in family proceedings and the competing requirements of disclosure and confidentiality.
The High Court and Court of Appeal held that the need for the court to have the information necessary to make proper provision took priority over the privacy or confidentiality concerns of a family business.
However, the Court of Appeal also held that the confidentiality of the information should be protected as far as possible, using a confidentiality club.
In this case, access to the information was limited to the lawyers and forensic accountants, rather than the parties themselves.
Durcan noted that, while confidentiality clubs had been used in other litigation and informally in family-law litigation, this was the first time he had seen one formally used in a family-law case.
Commenting that “we've all seen cases with litigation misconduct”, the barrister drew attention to the High Court decision, GC v JC, which he said was “very clearly a case where the litigation misconduct had effects”.
The case involved a failure to disclose an asset, requiring the matter to be revisited.
Ms Justice Jackson ruled that 60% of the asset, or its value, should go to the wife.
Litigation misconduct
The judge was explicit that the increased allocation reflected the litigation misconduct.
Durcan recommended that practitioners tell clients that litigation misconduct “may well be reflected in the orders which are made by the court”.
He also cited Ms Justice Jackson’s decision in MV v BK to reject an application to transfer Circuit Court family proceedings to the High Court, saying it was a “fairly ringing endorsement” of the Circuit Court’s ability to deal with complex family-law cases.
Durcan said that several cases had come before the High Court on where a Circuit Court judge had declined to rule a settlement.
Referring to the NF v OF case, he noted that where settlements had been signed by both parties, particularly following legal advice, the circumstances in which they would not be ruled should be “very rare indeed”.
An obvious error or omission might justify a different approach, but it would have to be something “quite unusual”.
Relocation cases
The case of D v D illustrates the inherent difficulty of relocation cases, Gerard Durcan said.
“There's no neat compromise. Somebody loses and somebody wins,” he commented.
He added: “I think it's probably more difficult for the person wanting the relocation than it used to be ten or 15 years ago.”
In Child and Family Agency v Guardian Ad Litem & Anor, Mr Justice Simons made a Protective Costs Order in favour of a guardian ad litem.
“In short, he said if the guardian didn't have that protection, the guardian might not take part in the judicial-review proceedings, and it was very important from the child's perspective that the guardian did take part.
“It’s an interesting judgment, and a sensible judgment, if I might say,” Durcan said.