G.M v I.M

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Woulfe
• Judgment Date: 28 June 2024
• Neutral Citation: [2024] IECA 169
• Docket Number: Court of Appeal Record No. 2023/121

Between

G.M.

Applicant/Appellant

and

I.M.

Respondent

[2024] IECA 169

Woulfe J.

Ní Raifeartaigh J.

Power J.

Court of Appeal Record No. 2023/121

THE COURT OF APPEAL

JUDICIAL REVIEW

APPROVED JUDGMENT

NO REDACTION NEEDED

JUDGMENT (No. 2) of Mr. Justice Woulfe delivered electronically on the 28 ^th day of June, 2024

1 . This second judgment relates to two issues which have arisen consequential upon the principal judgment of the Court (Woulfe J.; Ní Raifeartaigh J. and Power J. concurring) delivered on the 28 ^th February, 2024, which dismissed the appeal by the applicant/appellant (described in this ruling as “the applicant”) against an order of the High Court that a previous order of that Court granting the applicant leave to apply for judicial review be set aside, and also that the proceedings be dismissed and that the respondent recover against the applicant the costs of the proceedings.

(A) Isaac Wunder Order

Background

2 . The background to this issue is as follows. These judicial review proceedings arose out of very protracted family law proceedings between the same parties, in circumstances where the parties had formerly been in an intimate relationship and have a child together. The parties have been estranged for a number of years now, and the long running and highly contentious litigation has related primarily to matters such as access by the applicant to their child and payment of maintenance by the applicant.

3 . The proceedings which gave rise to the judicial review were appeal proceedings in the Circuit Court from an order or orders made by the District Court as far back as the 8 ^th December, 2015. The trial judge stated in the Court below that these proceedings had previously been listed before the Circuit Court for hearing on more than forty occasions. During her ruling on costs the Circuit Court judge stated that she had no doubt that the costs in the matter had been significantly increased by the applicant's unmeritorious conduct, including his constant breaches of the access order and constant applications to the Court.

4 . During the submissions on costs before the Circuit Court, then counsel for the applicant stated that the matter of bringing repeated litigation could be dealt with by way of an Isaac Wunder order instead of by way of a costs order. At the conclusion of the hearing, the Circuit Court judge stated that she was making an Isaac Wunder order restricting the applicant from taking any further proceedings in the District Court, the Circuit Court or in any other Court, and she then purported to make such an order restricting any such proceedings without the leave of the Court.

5 . In the judicial review proceedings the applicant sought, inter alia, an order of certiorari quashing that Circuit Court order. The High Court granted leave to apply for judicial review, but subsequently set aside the grant of leave on the basis of misstatements and non-disclosure by the applicant. The applicant appealed, and in our judgment we upheld that decision subject to the one minor qualification that the misstatements and non-disclosure were not material to the applicant's challenge to the Isaac Wunder order, which on balance we found the grant of leave did encompass. In the circumstances, we varied the order of the Court below to the limited extent of not setting aside the grant of leave on that one aspect of his challenge to the Circuit Court order.

6 . The issue which then arose was whether that small outstanding balance of these proceedings (regarding the validity of the Isaac Wunder order made by the Circuit Court) should be remitted to the High Court for determination, in circumstances where the trial judge had cast doubt upon the validity of that order as made, and where remittal would, inevitably, give rise to further costs. The Court indicated to the parties that, in the alternative, this Court could make an order quashing the Isaac Wunder order and proceed to entertain an application by the applicant for a fresh Isaac Wunder order. The parties agreed to this course of action, and subsequently written submissions were filed and a supplemental hearing was held on this issue.

Submissions of the Parties

7 . In her submissions the respondent refers to being subject to more than one hundred and three court attendances since November 2012, in either the District Court or the Circuit Court, and she also refers to two unsuccessful judicial review proceedings brought by the applicant in the High Court. She submits that continued failure to comply with various court orders and failure to deal honestly and openly with the s. 47 report compilers caused the multiple court appearances and resulting interim orders. She refers to three affidavits filed by her in the Circuit Court which are said to set out the applicant's continued failure to comply with various orders, and she notes that the applicant did not file any replying affidavits in response, and this Court was furnished with copies of these affidavits.

8 . The respondent states that in addition the applicant unsuccessfully appealed various safety orders made by the District Court, was involved in applications for grandparent access made by his parents and appeals of District Court orders for such access which were then not proceeded with, and also made an unsuccessful half-sibling access application on behalf of his minor daughter. She states that as a result of the unending litigation she has suffered and continues to suffer significant financial strain, and that the continual litigation has had a significant personal impact on her, and more particularly has caused significant stress and anxiety on the part of the minor child.

9 . The respondent submits that the Courts have a jurisdiction to restrain a person who has habitually or persistently instituted vexatious or frivolous civil proceedings from bringing any further proceedings without first seeking the leave of the Court to do so, which restraining order is commonly referred to as an Isaac Wunder order. She refers to certain authorities which state that, in assessing the question of whether the proceedings are vexatious, the Court is entitled to look at the whole history of the matter.

10 . The respondent submits that the continued and ongoing litigation has caused and continues to cause her enormous personal stress and anxiety, together with financial stress. The continued litigation is said to have led to a diminution in family finances, with a current expenditure in excess of €300,000, which has had an impact on the family's ability to holiday and to spend the money expended on litigation on the family and the minor child more generally. It submitted that an Isaac Wunder order, while restricting unfettered access to the Courts, would act as a filter and/or a supervisory role of the Court in preventing the continued personal and financial harassment and oppression of the respondent, and by extension of the minor child.

11 . In his submissions the applicant states that the Circuit Court proceedings were initiated by the respondent by way of appeal of the District Court order dated the 8 ^th December, 2015, and, as such, all subsequent appearance dates relating to these proceedings before the Circuit Court are as a consequence of the applicant's appeal. As regards the number of court attendances, he refers to certain correspondence (which was not furnished to the Court) which he says indicates that there were in fact eight applications brought by the parties before the District Court and out of these eight, six were brought by the respondent and two were brought by the applicant.

12 . The applicant submits that to characterise these proceedings as the applicant having brought an inordinate amount of litigation against the respondent and/or having caused significant costs to be incurred is plainly wrong and baseless. Both parties have availed of their right of access to the courts on a number of occasions, and both parties have a particularly strong interest in the proceedings as they relate to their son. It is said that it is not unreasonable for either party to initiate proceedings and/or appeal orders and/or bring judicial review proceedings as has occurred in this matter. It is also submitted that family law proceedings often result in a large number of appearances and hearing dates.

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