S.L. v M.L.

• Jurisdiction: Ireland
• Judge: Ms. Justice Mary Rose Gearty
• Judgment Date: 13 February 2020
• Neutral Citation: [2020] IEHC 203
• Docket Number: [JR 844/2018]
• Court: High Court
• Date: 13 February 2020

BETWEEN

S. L.

APPLICANT

AND

M. L.

RESPONDENT

[2020] IEHC 203

Mary Rose Gearty J.

[JR 844/2018]

THE HIGH COURT

JUDICIAL REVIEW

Family law proceedings – Isaac Wunder Order – Judicial review – Respondent seeking an Isaac Wunder Order – Whether the case could be fairly considered without hearing evidence

Facts: The applicant applied for judicial review and the respondent applied for an Isaac Wunder Order in response. The unusual features of this case, as regards an Isaac Wunder application, are all too familiar in family law proceedings; there had been allegations and counter-allegations, many of them very serious. One of the first issues for the High Court was to decide if the case could be fairly considered without hearing evidence in circumstances where many of the serious allegations made were contested. Given that the order sought was one that could only rest on a foundation of habitual court applications which were vexatious or without grounds, the Court could proceed to rule on the matter without deciding the issues of fact raised.

Held by Gearty J that there was insufficient evidence to justify the making of such a serious order in terms of its restriction of access to justice. Gearty J refused the application for an Isaac Wunder Order.

Gearty J made no order as to costs in the circumstances.

Application for an Isaac Wunder Order refused.

Ex-Tempore JUDGMENT of Ms. Justice Mary Rose Gearty delivered on the 13th day of February, 2020

1 The application before me is for an Isaac Wunder Order. The Applicant herein had applied for judicial review and the Respondent applied for the said order in response. The application for the Isaac Wunder Order is the only matter considered by the Court in this judgment, hence the Respondent is the party who seeks the relief. An Isaac Wunder Order is not an order to be granted lightly, as it greatly restricts access to justice in that the prospective litigant cannot take action in respect of a defined issue, or as against specific parties, without court permission being granted before proceedings commence, if such an order is granted.

2 The law is as set out in The Irish Aviation Authority v. Monks [2019] IECA 309, a decision from last December in the Court of Appeal. Here, Mr. Justice Haughton quotes from Riordan v. Ireland (No. 5) [2001] 4 I.R. 463 – and I note the title; it was the 5th such action by Mr. Riordan;

“There is no doubt that the jurisdiction to grant an Isaac Wunder order should be exercised sparingly. In McMahon v. WJ Law & Co. LLP [2007] IEHC 51 at para 20, MacMenamin J. identified the principles applicable: -

‘Among features identified by Ó Caoimh J. in Riordan v. Ireland (No. 5) [2001] 4 I.R. 463 as justifying such an order, or militating against the vacating of such an order already granted are: - The habitual or persistent institution of vexatious or frivolous proceedings against parties to earlier proceedings.

The earlier history of the matter, including whether proceedings have been brought without any reasonable ground, or have been brought habitually and persistently without reasonable ground.

The bringing up of actions to determine an issue already determined by a court of competent jurisdiction, when it is obvious that such action cannot succeed, and where such action would lead to no possible good or where no reasonable person could expect to obtain relief.

The initiation of an action for an improper purpose including the oppression of other parties by multifarious proceedings brought for the purposes other than the assertion of legitimate rights.

The rolling forward of issues into a subsequent action and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings.

A failure on the part of a person instituting legal proceedings to pay the costs of successful proceedings in the context of unsuccessful appeals from judicial decisions.’”

3 Mr. Justice Haughton continued;

“In his concurring judgment in the present case, which I have read in draft, Collins J emphasises the exceptional nature of the Isaac Wunder jurisdiction and the care that needs to be taken to ensure that such orders are made only where the court called upon to make such an order is satisfied that it is proportionate and necessary. They are not to be made simply because a proceeding has issued that is bound to fail …”.

This is relevant to the Judicial Review proceedings that had been brought in tandem with this motion, even though now they are not before this court. These, above, are the factors which justify the order.

4 The unusual features of this case, as regards an Isaac Wunder application, are all too familiar in family law proceedings; there have been allegations and counter-allegations, many of them very serious. One of the first issues for this Court was to decide if the case could be fairly considered without hearing evidence in circumstances where many of the serious allegations made are contested. Given that the order sought is one that can only rest on a foundation of habitual court applications which are vexatious or without grounds, this Court can proceed to rule on the matter without deciding the issues of fact raised.

5 The Applicant bears the burden of proving habitual unreasonable and or vexatious applications. Here, it is common case that both parties have made multiple applications. To some extent, it is clear that many of these are not necessary – or at least are not wise. The difficulty here is that, because both parties have asserted their rights repeatedly before different courts, there is no obvious pattern (bearing in mind the onus is on the Applicant), and no proof of an obvious pattern of the Respondent being the main instigator of the court hearings or even most of the court hearings. No...