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One hit wunders

04 Dec 2019 / Litigation Print

One-hit Wunders

If an applicant is engaging in an abuse of process or vexatious litigation, the court may take the appropriate steps to protect the interests of both parties by granting an Isaac Wunder Order.

An ‘Isaac Wunder Order’ is an order that requires a litigant, who is found to have initiated proceedings that are an abuse of process against another party, to apply to the court for its prior consent before that litigant can issue further proceedings against that same party. While the jurisdiction of the court to grant such orders is relatively recent, this relief is regularly sought by parties in litigation.

Inherent jurisdiction

The court’s jurisdiction to grant Isaac Wunder Orders first arose in Keaveney v Geraghty in 1965. Walsh J, for the majority in the Supreme Court, found that the High Court had an inherent jurisdiction to dismiss or stay proceedings on any grounds stated if they are substantiated.

The Supreme Court varied the High Court order by requiring the plaintiff (Keaveney) to first seek leave of the High Court to bring future proceedings and, if such leave was not sought and granted, the defendant was not required to appear or to take any steps in relation to the proceedings, and such proceedings should be treated as void and of no effect.

The case that gave its name to the jurisdiction is Wunder v Irish Hospitals Trust (1940) Limited (1967). The defendant organised and ran a lottery, the proceeds of which were to finance hospitals. Mr Isaac Wunder claimed to have a winning ticket in the defendant’s sweepstakes from a draw in 1948, but waited until 1962 to make a claim.

Vexatious proceedings

At the trial of the action, the plaintiff claimed that he accidently destroyed the alleged winning ticket. Arising out of this dispute, the plaintiff commenced a number of actions against the trust. Wunder was unsuccessful before the High Court and, on appeal, the Supreme Court (Ó Dálaigh J) said that the proceedings were vexatious, and made an order requiring Wunder to seek leave of the court if he wished to commence further proceedings against the defendants.

In a more recent case (SP v UG), the High Court said that the court’s jurisdiction to grant Isaac Wunder Orders comes from the implied power that arises from the duty of all courts to supervise and control their own procedures so as not to be oppressive or to allow parties to be endlessly subjected to vexatious applications and litigation being repeatedly brought before the courts.

English position

While the Isaac Wunder Order is a creature of Irish jurisprudence, the courts in England enjoy a similar jurisdiction with Grepe v Loam Orders (also known as Civil Restraint Orders). In Grepe, six separate actions were commenced by the plaintiff and all were dismissed.

Lindley LJ said that all applications were wholly unfounded, and the defendant was entitled to a level of assurance that the plaintiff would not bring further claims without first satisfying the court that such further claims were not frivolous or vexatious. As the jurisdiction has evolved, the English courts now have three subcategories of orders (provided for under Civil Practice Rule 3.11 – Practice Direction 3C) that the court may grant:

  • A limited restraint order may be made by a judge of any court where a party has made two or more applications that are totally without merit,
  • An extended restraint order may be made by specified courts where a party has persistently issued claims or made applications that are totally without merit, and such order not lasting more than two years, and
  • A general civil restraint order for a maximum duration of two years, restricting a party from issuing any claim or making any applications in all county courts and the High Court.

Constitutional considerations

When a court is asked to exercise its jurisdiction and grant an Isaac Wunder Order, the court must have regard to two competing interests.

On the one hand, there is the right of the defendant to secure protection from the court against unstatable cases by the plaintiff. As Keane CJ in Riordan v Ireland (No 4) stated, the “court is bound to uphold the rights of other citizens, including their right to be protected from unnecessary harassment and expense”.

On the other hand, however, the plaintiff has a constitutional right to access to the courts, as well as rights of access to the courts under article 6(1) of the European Convention on Human Rights. Considering the plaintiff’s constitutional rights in this regard, in O’Reilly McCabe v Minister for Justice (2009), Denham J stated that “the constitutional right to access to the courts, while an important right, is not an absolute one. As a corollary of that right, a court must also protect the rights of opposing parties, the principal of finality of litigation, the resources of the courts; and the right to fair procedures which accrue to each party to litigation as well as the plaintiff.”

Constitutional right

While the imposition of an Isaac Wunder Order does undoubtedly impede the applicant’s constitutional right to access to the court and to litigate, such an applicant is not left without the possibility of securing relief at the leave stage of an intended action.

Considering the constitutional rights of the plaintiff, McDermott J in Superwood Holdings plc v Sun Alliance & London Insurance plc (2017) commented that the making of an Isaac Wunder Order is not a denial of the right of access to the courts, but rather it provides a filter to ensure that a litigant is prevented from initiating any further frivolous or vexatious proceedings and to protect the administration of justice from further abuse of process.

In Superwood, the court said that the granting of an Isaac Wunder Order was a proportionate response to a party’s proven abuse of process.

Application of jurisdiction

The court in Riordan v Ireland (No 5) set out the basis on which an applicant may seek the relief of an Isaac Wunder Order: “Where the court is satisfied that a person has habitually and 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.

The court has to determine whether the proceedings being brought are being brought without any reasonable grounds or have been brought habitually and persistently without reasonable grounds.”

Considering the court’s comments, it is vital to establish whether the proceedings brought by the plaintiffs can be considered frivolous or vexatious. Ó Caoimh J went on in Riordan v Ireland (No 5) to cite with approval a Canadian decision in Re Lang Michener and Fabian (1987), where the following issues were indicated as tending to show that a proceeding is vexatious:

  • The bringing up of one or more actions to determine an issue that has already been determined by a court of competent jurisdiction,
  • 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,
  • 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,
  • 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,
  • Where the person instituting the proceedings has failed to pay the costs of unsuccessful proceedings, and
  • Where the respondent persistently takes unsuccessful appeals from judicial decisions.

Limited circumstances

While the courts have indicated that Isaac Wunder Orders should only be granted in very limited circumstances (O’Malley v Irish Nationwide Building Society, courts should nonetheless be prepared to grant such orders, if appropriate in the particular case.

If the court is satisfied that the Isaac Wunder Order should be granted, the court should not attempt to circumvent the granting of the relief by, for example, seeking an undertaking from the applicant that he/she will not institute further proceedings.

In Allied Irish Banks v McQuaid (2018), the plaintiff bank commenced proceedings seeking the recovery of €3 million from the first-named defendant. Mr McQuaid was not legally represented during the course of the proceedings. However, he was accompanied by Mr Ben Gilroy, who acted as McQuaid’s ‘McKenzie Friend’ (assists a litigant-in-person during the course of proceedings).

The bank sought orders restricting Gilroy from acting as a McKenzie Friend and an Isaac Wunder Order restricting his entitlement to commence proceedings against the plaintiff. In support of its application, the bank set out a non-exhaustive list of 12 cases involving Gilroy and the plaintiff. Haughton J granted an Isaac Wunder Order against Gilroy, requiring him to seek leave of the President of the High Court or the judge in charge of the Commercial Court list if he intended to commence proceedings against the bank in the future.

In Houston v Barniville (2019), Twomey J indicated that he was of the opinion the only way in which a defendant could stop an impecunious plaintiff pursuing unmeritorious claims is by the defendant seeking an Isaac Wunder Order preventing that plaintiff taking any further proceedings without first securing court approval.

Leave to commence

Once an Isaac Wunder Order has been made, the party to whom that order is directed may not institute proceedings against identified individuals or entities without first securing leave of the court by way of an application in an intended action.

The circumstances in which the court may grant an order allowing an applicant who is the subject of an Isaac Wunder Order in an intended action to commence proceedings was considered by the High Court in Riordan v Ireland (No 5).

The test applied by the court was whether it was obvious that the proceedings could not succeed and whether a reasonable person could reasonably expect to obtain the relief sought.

Subjective test

The test on whether a party that is the subject of an Isaac Wunder Order may commence an intended action is a subjective test. It is interesting to note that Mr Wunder brought numerous applications for leave with regard to intended actions against the Irish Hospitals Trust in the late 1960s and the early 1970s. Commenting on Wunder’s applications, Kenny J stated in one of them that Mr Wunder’s appetite for litigation had not abated in any way, despite the numerous orders of the courts.

While the Isaac Wunder Order is a relatively recent relief available to parties who find themselves the subject of repeated frivolous and vexatious claims, the Irish courts have opined on this area of law in a large number of cases. The jurisdiction in England (Grepe v Loma Orders) has evolved since 1887 to a more precise instrument than the standard relief available in this jurisdiction.

The ability of one party to unilaterally (in the main) commence proceedings against parties will always require supervision and, while the effect of an Isaac Wunder Order may be considered draconian by some – as it negatively affects an individual’s constitutional rights – the court must carefully consider the rights of both parties.

James Meighan
James Meighan is an associate solicitor with Eugene F Collins