An Isaac Wunder Order restricts the ability of a repeat litigant, found to be vexatious by the Court, from issuing further proceedings, without obtaining leave of the Court to do so. Due to the effect of the Isaac Wunder Order, it is granted only in exceptional circumstances.
The Order restricts a vexatious litigant’s right of access to the courts for a specific or indefinite period. It does not completely restrain a litigant from bringing proceedings, but acts as a filter to a litigant’s right of access by requiring them to seek leave from another Court before they can do so.
The conditions necessary for an Order to be granted were best illustrated by Ms Justice Irvine in Burke v Judge Fulhan  IEHC 448. In this case, a Tipperary farmer was convicted of offences in the District Court under Protection of Animal Acts, Control of Horses Act and Control of Dogs Act. Mr Burke issued proceedings against the Circuit Court Judge on the basis that the Judge did not follow fair procedures. On hearing the matter, Ms Justice Irvine set out the grounds on which must be present before such an imposing Order may be given:
- The Plaintiff is bringing proceedings which have already been determined;
- It is obvious that the action cannot succeed;
- The action was brought for an improper purpose including harassment;
- The rolling forward of issues into subsequent actions;
- The whole history of proceedings;
- Failure to pay costs of previous actions;
- Conduct of the parties.
Given that the above conditions were satisfied, together with the fact that the Plaintiff had a pattern of using judicial review and court procedures with an aim to frustrate the Court process, Ms Justice Irvine granted an Isaac Wunder Order against the Plaintiff. The Plaintiff was prevented from bringing proceedings against any person holding the office of Judge of the Supreme, High, Circuit or District Court or against the Director of Public Prosecutions, any member of the legal profession or government minister, except with the prior leave of the President of the High Court Appeals.
Mr Justice Twomey recently revisited the matter in the High Court in McMahon v Bank of Scotland  IEHC 438. The Plaintiffs claimed a receiver was invalidly appointed over their five investment properties. In their Statement of Claim, the Plaintiffs proceeded to claim that the Defendant Bank breached foreign law, that the Bank was guilty of ‘fraud in the factum’, that the EC (Unfair Terms in Consumer Contracts) Regulations 1995 applied in regards to the contract made between the parties, that the Bank created their own currency and that 97% of money was in the minds of the bankers.
During the course of the hearing, the Defendant Bank acknowledged that an error had been made in the calculation of interest rates in respect of one investment property (the Ballyjamesduff property) meaning that the account would not have been in arrears on the date the receiver was appointed. The Bank consented to the Plaintiffs inserting a claim in relation to the error of calculation of interest in their Statement of Claim, however still submitted that the receiver was validly appointed on the grounds of cross-securitisation.
In making his judgment, Mr Justice Twomey cited that allowing the case to go to full plenary hearing (with exception to the claim in respect of the Ballyjamesduff property) would be a waste of public resources and granting such an Order would be in the public interest. Mr Justice Twomey found that the Plaintiffs had an attitude of entitlement to Court time as the Plaintiffs motion took six days to complete instead of the three days which was allocated for it.
The Court further found that the Plaintiffs actions were vexatious, in particular when the Plaintiffs claimed that they wanted to re-litigate arguments which had been made in the Supreme Court case of Freeman v Bank of Scotland, a matter to which the current Plaintiffs were not involved in.
In light of the above, Mr Justice Twomey granted an Isaac Wunder Order precluding the Plaintiffs from commencing any new legal proceedings which directly or indirectly concerned the properties or borrowings subject to the previous court proceedings without obtaining leave from President of High Court.
The right of access to the Courts is guaranteed under Article 40.3 in the Irish Constitution, however as can be seen in the case law mentioned above, the Courts will use their power to limit this right in particular circumstances when vexatious claims are being made.
For more information contact Gill Cotter, Solicitor in our Debt and Asset Recovery Department.
Burke v Judge Fulhan  IEHC 448
McMahon & anor v Bank of Scotland & anor  IEHC 438.
Tracey v. Burton  IESC 16
Freeman v. Bank of Scotland  IESC 14