M v M

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr. Justice Maurice Collins,Ms. Justice Dunne,Mr. Justice Gerard Hogan,Mr. Justice Brian Murray
• Judgment Date: 23 January 2026
• Neutral Citation: [2026] IESC 2
• Docket Number: S:AP:IE:2024:000124

Between

G.M.

Applicant/Appellant

and

I.M.

Respondent

The Attorney General

Notice Party

[2026] IESC 2

Dunne J.

Charleton J.

Hogan J.

Murray J.

Collins J.

S:AP:IE:2024:000124

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Access and maintenance – Isaac Wunder order – Leave to apply – Appellant seeking leave to apply for judicial review – Whether a court dealing with applications for access and/or maintenance in respect of a child is entitled to make an Isaac Wunder order against a party to those proceedings

Facts: The parties were engaged in proceedings pertaining to the access and maintenance of their child. The District Court issued an order varying a previous order for access. The respondent appealed that to the Circuit Court, which made a final determination on the issues of both access and maintenance. The appellant applied for leave to apply for judicial review to the High Court. The application was granted. The respondent issued a motion to set aside the grant of leave. The High Court ([2023] IEHC 95) set aside the grant of leave. The appellant sought to appeal the decision of the High Court. The Court of Appeal ([2024] IECA 45) upheld the High Court’s finding that the previous grant of leave should be set aside on the grounds that there had been material misstatements of fact and/or material non-disclosure on the part of the appellant. In a second judgment ([2024] IECA 169), the Court of Appeal concluded that permitting the appellant to continue to litigate against the respondent “would be unfair and oppressive...and a waste of scarce court time and resources to the detriment of other litigants”. The appellant was granted leave to appeal to the Supreme Court on the following four issues: (1) whether a court dealing with applications for access and/or maintenance in respect of a child is entitled to make an Isaac Wunder order against a party to those proceedings; if so entitled (2) the basis on which such an order may be made; if so entitled (3) whether there was any error by the Court of Appeal in making the Isaac Wunder order in the proceedings; (4) the powers a court may generally exercise when presented with a serial litigant or someone who prolongs or disrupts proceedings on a repeated basis including disrupting or prolonging proceedings by misrepresenting what occurred in court on a previous occasion.

Held by Dunne J that the Isaac Wunder order made by the Court of Appeal was neither disproportionate nor unduly restrictive, but rather a necessary response to a campaign of unmeritorious and oppressive litigation on the part of appellant on the basis of the evidence before the Court. Dunne J held that where an application for leave to apply for judicial review is brought on a basis which is factually misleading, an application to set aside the grant of leave may be appropriate, as it was in this case.

Dunne J dismissed the appeal and affirmed the order of the Court of Appeal.

Appeal dismissed.

Final but unapproved

No further redaction required

JUDGMENT of Mr. Justice Maurice Collins delivered on 23 January 2026

1 I agree that this appeal should be dismissed and in large measure I agree with the detailed analysis and conclusions of Dunne J. On the central issue raised in this appeal – whether Isaac Wunder orders may be made in family law proceedings and, if so, in what circumstances and subject to what conditions – I agree completely with Dunne J's reasoning and conclusions. So far from excluding the exercise of the Isaac Wunder jurisdiction in family law litigation, consideration of the best interests of the child may well justify the making of such an order. More broadly, it is an unfortunate fact that family law proceedings can too often become a form of lawfare, in which the processes of the court are misused by one party to oppress, harass and destabilise the other.

2 The existence of such a jurisdiction, and its proper exercise in the area of family law, does not in my view, amount to any impermissible interference with, or limitation of, the right of access to the courts. Access to the courts is a fundamental constitutional right of every person within the jurisdiction, whether or not a citizen: Brandley v Deane [2017] IESC 83, [2018] 2 IR 741, per McKechnie J at §48. However, there is no right to use the court's process to reopen litigation or to pursue litigation that is plainly groundless and vexatious: Riordan v Ireland (No 4) [2001] 3 IR 365. Furthermore, the making of an Isaac Wunder order does not exclude access to court but rather makes recourse to the court subject to the court's prior permission. That has been characterised as “ a proportionate filtering mechanism” intended “ to protect the opposing party from the injustice of having to incur what are often very significant and unrecoverable costs, in meeting oppressive and abusive claims”: Fitzsimons v Bank of Scotland Plc [2019] IECA 336, per Noonan J at §24.

3 Costs are not, of course, the only burden of litigation. It can also impose a heavy psychological toll on those involved and that is perhaps particularly true of family law litigation. In addition to the burden on litigants, witnesses and the other actors in the litigation process, vexatious and abusive claims impose a significant burden on the administration of justice. The protection of the public interest – in the finality of litigation and the proper use of limited court resources – is an important element of the Isaac Wunder jurisdiction and serves to explain why Issaac Wunder orders may be made by a court of its own motion: Houston v Doyle [2020] IECA 289, §64 & §69.

4 I agree with Dunne J that the existence and/or exercise of the Isaac Wunder jurisdiction in family law litigation is not, in principle, contrary to Articles 6 and/or 8 of the European Convention on Human Rights (ECHR).

5 The power to make an Isaac Wunder order is one of the “ inherent powers” that all courts enjoy as a necessary incident of their status and function as a court established by or under the Constitution: see the discussion of inherent powers in my judgment in Kirwan v Connors [2025] IESC 21, at §34 and following. It is one of the powers that a court must have “ in order to maintain its character as a court of justice”: Bhamjee v Forsdick (Practice Note) [2003] EWCA Civ 1113, [2004] 1 WLR 88, at 93. Bhamjee v Forsdick traces the recognition of such a power back to the judgment of Alderson B in Cocker v Tempest (1841) 7 M & W 502 (§503–504) at 92.

6 The UK Parliament enacted the Vexatious Actions Act in 1896 (“ the 1896 Act”) (now section 42 of the Senior Courts Act 1981) but the 1896 Act did not apply to Ireland. 1 This Court's decision in ( Wunder v Hospitals Trust (1940) Ltd Unreported, 11 April 1967) appears to be the first time that an Irish court has made what has come to be labelled as an “ Isaac Wunder order”. 2 But there is no single form of order and in practice such orders vary significantly in their terms.

7 Here, the order made by the Court of Appeal restrains GM from instituting any proceedings against IM, including any appeal, in any court (other than this Court), without

the prior leave of the President of the court concerned (or his or her nominee), for an indefinite period. That is, on any view, a very broad form of order, corresponding to what in England and Wales is designated a General Civil Restraint Order. The need for such an order was first identified by the Court of Appeal of England and Wales in Bhamjee v Forsdick (Practice Note): §§43–47. Notably, the Court of Appeal indicated that such an order should not be made for a period exceeding two years, unless subsequently extended: §46. Further provision for the making of such orders has been made by way of the Civil Procedure Rules (CPR) and Practice Direction ( Practice Direction 3C – Civil Restraint Orders), which provides that such an order should not be made for a period in excess of three years but may be extended (again, for no more than three years). The CPR and the Practice Direction prescribe how applications for civil restraint orders are to be made, how applications for permission to bring proceedings are to be made and dealt with, the form of order to be made, and various related matters. Such orders are subject to different thresholds and differ significantly in their scope and effect. As well as General Civil Restraint Orders, these procedures allow for and regulate the making of other restraint orders of narrower scope, namely Limited Civil Restraint Orders (the effect of which is to prohibit a litigant from making any further applications in existing proceedings without prior permission) and Extended Civil Restraint Orders (the effect of which is to restrain the bringing of further proceedings relating to a specific issue or subject-matter). Extended Civil Restraint Orders are also subject to a three-year maximum limit, with the possibility of extension.

8 In this jurisdiction, there has not been any legislative intervention, nor has the Superior Courts Rules Committee made rules relating to the exercise of the Isaac Wunder jurisdiction. Whereas previously it may have been the case that Isaac Wunder orders were made only “ in very rare circumstances” ( O' Malley v Irish Nationwide Building Society (Unreported, High Court, Costello J, 21 January 1994), anyone involved in the administration of justice in Ireland – and the phenomenon is by no means unique to this jurisdiction – will be well aware that such orders are now sought, and made, with ever increasing frequency. 3 There appears to be no reason to believe that that trend will not continue.

9 In my view, it is high time that rules are made that regulate and structure this jurisdiction. Such rules could usefully set out the procedures for making an order (including the procedure applicable where a court considers it appropriate to make an order on its own initiative), the...