“Wunders” will never cease

Author: Susie Higgins, Mark Kelly & Grainne O’Callaghan

September 13, 2018

The High Court, in two separate cases, recently examined the law surrounding the granting of an Isaac Wunder Order restricting certain members of the public from issuing legal proceedings.

What is an Isaac Wunder Order?

An Isaac Wunder order is an order restraining a person from instituting further proceedings against a party, where they are essentially a repeat of previous proceedings which have already been decided.

When is an Isaac Wunder order granted?

The right of access to the courts is an important constitutional right however this must be balanced with the Courts’ obligation to protect the rights of other parties, the finality of litigation, the resources of the courts, fair procedures and the integrity of its own processes. The seminal case of Riordan v Ireland I.R.463 in 2001 set out the general guidelines for considering whether or not an Isaac Wunder Order should be granted, which include the following

  • the number of actions brought by a particular litigant;
  • whether a particular issue has already been determined by a court of competent jurisdiction;
  • whether it is obvious that an action cannot succeed and that no reasonable person could expect to obtain relief in the circumstances of that action;
  • whether 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;
  • whether the issues to be determined are repeated from earlier actions albeit supplemented;
  • whether the litigant instituting the proceedings has failed to pay the cost of previous unsuccessful proceedings; and
  • whether the litigant persistently takes unsuccessful appeals from judicial decisions

The High Court has considered these principles in two recent cases:

 

AIB Plc v McQuaid, Gilroy and McGuinness and Or(s)

Background

In 2013, proceedings were instituted by the AIB” against Mr McQuaid seeking to recover a sum in excess of €3 million in respect of monies lent by AIB to Mr McQuaid.

At the hearing, Mr. McQuaid was unrepresented, but accompanied by Mr. Gilroy, who acted as Mr McQuaids’ “McKenzie Friend”. Judgment was granted on 2 February 2017 in the sum of €3,256,217.49, together with interest and costs.

A stay was placed on the Order for a period of twelve months but subsequently lifted in circumstances where Mr. McQuaid refused to give undertakings not to dissipate his assets. AIB then became aware that a dealing had been lodged with the Property Registration Authority by Mr Gilroy and Mr Charles McGuinness which purported to give effect to a “voluntary transfer” of lands and properties which were the subject of mortgages in favour of AIB. It appeared to the Bank that Gilroy and McGuinness were participants in a scheme designed to put the assets of Mr McQuaid beyond the reach of his creditors by receiving them into a trust, of which they were trustees.

AIB sought urgent injunctive relief.

Later in the proceedings, Mr Gilroy was joined as a defendant, and various reliefs were sought against him by AIB, including an “Isaac Wunder” Order and a further order restraining him from acting as a “McKenzie Friend” either in these proceedings or generally.

Decision

Having considered Mr Gilroy’s involvement as a McKenzie Friend to Mr McQuaid and generally in these proceedings, the Court determined that Mr Gilroy was acting in a vexatious manner. In addition, the Court made the following observations:

  • “A person found guilty of contempt of court is, almost by definition, a person who does not respect the court or court orders and therefore is not a person suitable to assist a personal litigant in relation to court proceedings. Mr. Gilroy has been convicted not once, but twice, of criminal contempt […] and also found guilty of civil contempt.”
  • “There can be little doubt but that […] Mr. Gilroy has colluded with Mr. McQuaid in an attempt to put Mr. McQuaid’s property……. beyond the reach of the plaintiff.”
  • Mr. Gilroy’s affidavits and submissions have been unhelpful, at times disrespectful, mistaken or misleading in their references to legal principles, and a further waste of court time. Moreover, his demeanour, while not overtly abusive, has been aggressive, and some of his least relevant comments and contentions seem to be more directed for the consumption of members of the public attending the court […] rather than urging any relevant or cogent argument on the court..”

The Court granted the Isaac Wunder Order sought by AIB in respect of Mr Gilroy. The Order permanently restrains him, whether alone or in concert with any other person, from advising, participating in, assisting or otherwise engaging in litigation in any court in the State in a representative capacity on behalf of others, whether in the capacity of “McKenzie Friend” or otherwise.

 

Angela Farrell v Law Society of Ireland

The President of the High Court, Mr Justice Peter Kelly granted an Isaac Wunder Order in favour of the Law Society of Ireland restraining Ms Angela Farrell from issuing proceedings against the Law Society of Ireland in respect of Orders previously made by the Court where Ms Farrell was struck off the Roll of Solicitors.

Background

Ms Farrell had issued a petition seeking certain reliefs of the Court in respect of Orders made in October and December 2013 and June 2014 by the High Court. Those Orders had not been appealed by Ms Farrell. As a result of Ms Farrell issuing this petition, the Law Society of Ireland sought for the proceedings to be struck out as they were not properly constituted and seeking an Isaac Wunder Order.

Decision

President Kelly outlined that an Isaac Wunder Order is granted sparingly by the Courts.

In this case, President Kelly outlined that Ms Farrell had demonstrated her contempt for orders of the court by giving evidence that she was not a bankrupt and that she remained a Solicitor on the Roll of Solicitors. This was not the case as Ms Farrell had been adjudicated a bankrupt and had been struck off the Roll of Solicitors.
President Kelly went on to outline that Ms Farrell’s persistent vexatious applications satisfied him that the Law Society ought to be protected from further litigation from Ms Farrell. President Kelly further outlined that Ms Farrell appeared to be a McKenzie friend to other litigants and that her appearance in other courts had been generally disruptive, unhelpful and an obstruction to the furtherance of the interests of justice. It had also become apparent that Ms Farrell had been removed from Court by the President’s predecessor, Mr Justice Nicholas Kearns.
President Kelly granted the Order restraining Ms Farrell from instituting any further proceedings against the Law Society of Ireland in seeking to challenge the validity of the orders made on 14 October 2013, 16 December 2013 and 24 June 2014 or any application seeking to compel the Law Society of Ireland to issue her with a practising certificate.

Conclusion

The refusal of serial litigants to accept the consequences of final orders and persistently ‘re-litigate’ issues which have already been determined, where there is no merit in doing so, is congesting the court system and frustrating the administration of justice. These decisions are to be commended and come at a crucial time when pressure on the court system is greater than ever. We must ensure that all citizens of the State have the right to due process however this is being diminished by the abuse of court procedures caused by such vexatious litigation, employed merely to delay the inevitable.

A copy of the AIB decision is available here

A copy of the Law Society decision is available here.

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