Riordan v an Taoiseach

• Jurisdiction: Ireland
• Judge: Mr Justice Aindrias Ó Caoimh
• Judgment Date: 11 May 2001
• Neutral Citation: 2001 WJSC-HC 5691
• Date: 11 May 2001
• Docket Number: 45 1.A/2001,[2001 No. 45 I.A.]
• Court: High Court

RIORDAN v. AN TAOISEACH & ORS

IN THE MATTER OF AN INTENDED ACTION

BETWEEN

DENIS RIORDAN

PLAINTIFF

AND

AN TAOISEACH, AN TANAISTE, MINISTER FOR FINANCE GOVERNMENT OF IRELAND, ATTORNEY GENERAL, CHIEF JUSTICE OF IRELAND, PRESIDENT OF THE HIGH COURT IRELAND

DEFENDANTS

2001 WJSC-HC 5691

Aindrias Ó Caoimh

45 1.A/2001

THE HIGH COURT

Synopsis

PRACTICE AND PROCEDURE

Access to courts

Litigation - Locus standi - Separation of powers - Appointment of government minister - Judiciary - Special savings scheme - "Isaac Wunder order" -Whether proposed proceedings vexatious - Courts (Establishment and Constitution) Act, 1961 - Finance Act, 2001 (2001/451A - O Caoimh J - 11/5/01)

Riordan v An Taoiseach - [2001] 4 IR 463

The plaintiff sought leave to bring proceedings in relation to a number of matters. The plaintiff wished to challenge a number of sections of the Courts (Establishment and Constitution) Act, 1961. In addition the plaintiff sought to challenge the appointment of a Government Minister and legislation governing the introduction of the special savings scheme. Mr. Justice Ó Caoimh held that the plaintiff was the subject of an "Isaac Wunder" order whereby prior leave of the court must first be obtained in order to institute proceedings. In regard to the majority of claims the plaintiff had not demonstrated the necessary locus standi. The proposed proceedings were vexatious. In regard to the proposed challenge to the special savings scheme the court would direct the plaintiff to furnish a draft statement of claim.

Citations:

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S1(3)

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S1(4)

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S2(3)

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S2(4)

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S2(5)

RIORDAN V AN TAOISEACH UNREP SUPREME 21.7.2000

FINANCE ACT 2001 S33

DYKUN V ODISHAW ALBERTA COURT OF QUEENS BENCH 3.8.2000

LANG MICHENER & FABIAN, RE 1987 37 DLR (4TH) 685

MACAULEY V MIN FOR POSTS AND TELEGRAPHS 1966 IR 345

MCELDOWNEY, STATE V KELLEHER 1983 IR 289

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

WUNDER V HOSPITALS TRUST (1940) LTD UNREP SUPREME 24.01.1967

KEAVNEY V GERAGHTY 1965 IR 551

O'MALLEY V IRISH NATIONWIDE BUILDING SOCIETY UNREP COSTELLO 21.1.94 1994/6/1669

CONSTITUTION ART 34

CONSTITUTION ART 35

CONSTITUTION ART 36

CONSTITUTION ART 14

CONSTITUTION ART 14.2.2

CONSTITUTION ART 31.2

CAHILL V SUTTON 1980 IR 269

1 Mr Justice Aindrias Ó Caoimh delivered the 11th day of May 2001

2 Mr Denis Riordan has applied to this Court for leave to institute proceedings entitled as above seeking relief as follows:-

3 1. Section 1 subsection 3 of the Courts (Establishment and Constitution) Act, 1961, is repugnant to the Constitution.

4 2. Section 1 subsection 4 of the Courts (Establishment and Constitution) Act, 1961, is repugnant to the Constitution.

5 3. Section 2 subsection 3 of the Courts (Establishment and Constitution) Act, 1961, is repugnant to the Constitution.

6 4. Section 2 subsection 4 of the Courts (Establishment and Constitution) Act, 1961, is repugnant to the Constitution.

7 5. Section 2 subsection 5 of the Courts (Establishment and Constitution) Act, 1961, is repugnant to the Constitution.

8 6. The division of the Supreme Court which purportedly heard the appeal in Denis Riordan v An Taoiseach Bertie Ahern, Government of Ireland, Minister for Finance Charlie McCreevy, Hugh O'Flaherty, Attorney General Michael McDowell S.C. Supreme Court Record No 175 & 181/2000 was operating unconstitutionally.

9 7. The appointment of Robert Molloy T.D. as Minister of State to the Government was and is illegal and is therefore unconstitutional.

10 8. Section 33 of the Finance Act 2001is repugnant to the Constitution.

11 The necessity for Mr Riordan to apply to this Court arises from the fact that on the 25th of March 1999 O'Sullivan J. made an Order in proceedings between Mr Riordan, as Plaintiff and The Taoiseach, the Tánaiste, the Government, the Oireachtas, Seanad Éireann, Dáil Éireann, the Attorney General and Ireland as Defendants that Mr Riordan be restrained from instituting proceedings against the office holders of the posts of the Defendants in those proceedings without prior leave of the Court.

12 The Order of O'Sullivan J. was made by him in exercise of the inherent jurisdiction of the High Court. Where the court is satisfied that a person has habitually or persistently instituted vexatious or frivolous civil proceedings it may make an order restraining the institution of further proceedings against parties to those earlier proceedings without prior leave of the court. In assessment of the question whether the proceedings are vexatious the court is entitled to look at the whole history of the matter and it is not confined to a consideration as to whether the pleadings discloses a cause of action. The court is entitled in the assessment of whether proceedings are vexatious to consider whether they have been brought without any reasonable ground. The court has to determine whether the proceedings being brought are being brought without any reasonable ground or have been brought habitually and persistently without reasonable ground.

13 In Dykun -v- Odishaw the Alberta Court of Queen's Bench, Judicial District of Edmonton on 3rd August 2000 referred to a decision of the Ontario High Court (Lang Michener and Fabian, Re (1987), 37 D.L.R. (4th) 685 at 691 (Ont. H. C.)) where the following matters had been indicated as tending to show that a proceeding is vexatious:-

14 (a) the bringing up on one or more actions to determine an issue which has already been determined by a court of competent jurisdiction;

15 (b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief;

16 (c) where the action is brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

17 (d) where issues tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

18 (e) where the person instituting the proceedings has failed to pay the cost of unsuccessful proceedings;

19 (f) where the respondent persistently takes unsuccessful appeals from judicial decisions.

20 The making of a restriction on the right of access to the Courts has to be seen in the context of the constitutional right of access to the Courts which has been recognised in this jurisdiction in a number of authorities including Macauley -v- Minister for Posts and Telegraphs [1966] I.R. 345: The State (McEldowney) -v- Kelleher [1983] I.R. 289 and in the context of the European Convention on Human Rights the provisions of Article 6(1) of the Convention which is in effect a recognition of the same right protected by the terms of the Irish Constitution.

21 The exercise by courts in this jurisdiction of the inherent jurisdiction referred to is generally referred to as the making of "an Isaac Wunder Order" arising from the fact that such an Order was made by the Supreme Court many years ago involving a persistent litigant of that name who instituted many proceedings against the Irish Hospital Trust alleging that he had won prizes in the sweepstakes promoted by it without any evidence to sustain same.

22 In Mr Wunder's case the Supreme Court made an Order on the 1st of April 1966 in a claim against the Irish Hospitals Trust [1940] Limited dismissing Mr Wunder's appeal against several Orders made by the High Court. It appears that an Order was made by the Supreme Court against Mr Isaac Wunder on the 24th of January 1967 directing that no further proceedings in the action in the High court be taken without leave of that Court being first obtained, and that if any such proceedings be taken in the action without such leave being first obtained the defendant was not required to appear to or take any steps in relation thereto and such proceedings so taken were to be treated as void and of no effect. This was not the first exercise by the Supreme Court of the inherent jurisdiction in question as that Court had made a similar Order in the previous case of Keavney -v- Geraghty [1965] I.R. 551 where the Supreme Court made an Order that there be no further proceedings in the action in question in the High Court without leave of the High Court being first obtained and that if any such proceedings be taken in the action without such leave being obtained the Defendant should not be required to appear to or take any steps in relation thereto and such proceedings so taken be treated as void and of no effect. It appears that on 6th February 1967 the High Court (Murnaghan J.) made an order that no further proceedings should be taken in a further action between the same parties without leave of that Court being first obtained and that if any such proceedings be taken in the action without such leave being first obtained, the defendant should not be required to appear and take any steps in relation thereto and that such proceedings so taken should be treated as void and of no effect. This order was affirmed by the Supreme Court on 11th April 1967.

23 A number of such orders have been made in proceedings since that time. A more recent example is that made by Costello J. in the case of O'Malley -v- Irish Nationwide, (High Court, unreported 21st January 1984). In that case the Plaintiff and his wife had instituted nine actions in the High Court and one action in the Western Circuit Court against the Defendants. In those proceedings Costello J. in exercise of the inherent jurisdiction of the High Court...