High Court confirms that conduct as a Defendant in previous proceedings may be considered in application for Isaac Wunder order

Speed Read

The High Court (Butler J) has delivered judgment in Scanlan v Gilligan and Ors [2021] IEHC 825  in which the fourth to seventh defendants applied for an Isaac Wunder order against the plaintiff. Owing to the unstateable nature of the plaintiff's claims and the fact that the claims were generally misconceived, the Court was satisfied that it would be unjust and oppressive to allow the plaintiff an unrestricted right to litigate against the applicants.The Court also highlighted that it would be a waste of scarce judicial resources at the expense of other litigants. The case is noteworthy as it was the plaintiff's conduct as a defendant in previous proceedings that was considered in deciding whether the order should be granted.

Discussion

The fourth to seventh defendants applied for an Isaac Wunder order preventing the plaintiff from issuing further proceedings without leave of the High Court against the applicants and associated parties.

In the judgment, Butler J emphasised that while an Isaac Wunder order constitutes a restriction on the right of a litigant to bring cases before a court, it does not necessarily prevent the litigant from litigating. Butler J went on to say that it is rare for an Isaac Wunder order to be made unless the previous litigation has been "prolonged, repetitive and unsuccessful". In outlining the purpose of such an order, the Court highlighted that it ensures that an opposing party is not subjected to an endless amount of litigation from the same litigant unless the court is satisfied that there is an objective merit in the prospective proceedings. The Court also pointed out that an Isaac Wunder order can ensure that court time is not taken up hearing cases which are unmeritorious.

Interestingly, Reynolds J had previously made a form of Isaac Wunder order preventing the plaintiff from issuing additional motions in the 2015 proceedings without obtaining leave from the High Court. However, the plaintiff subsequently breached that order which Butler J deemed to be "a cause for concern" and felt that unless the plaintiff was restricted, she would not curtail her proceedings against the parties. Relying on Fitzsimons v Tanager Limited and Anor [2019] IECA 336, the plaintiff opposed the application on the basis that, among other things, she is a defendant in the 2015 proceedings.

The Court was of the view that the application should be considered in light of the particular facts and the circumstances of the previous litigation. In recognising that in general it will be inappropriate for a court to make such an order against a litigant who has not previously instituted proceedings, Butler J indicated that this was not an immutable rule as the conduct of a litigant in previous proceedings may be such that they become the de facto moving party in the unnecessary prolongation of the litigation. As the plaintiff was the moving party in a number of motions, the Court was satisfied that the position in this case was different to that in Fitzsimons v Tanager Limited and Anor. The Court could deduce that the plaintiff's new proceedings sought to re-litigate matters that had been decided conclusively against her in earlier proceedings. The Court was satisfied that the "manifestly unstateable" and misconceived nature of the plaintiff's claim was such that to allow her an unrestricted right to litigate against Grant Thornton or its legal representatives would be unfair and oppressive to those parties and a waste of valuable court time. The Court made an Isaac Wunder order in the terms sought by the fourth to seventh defendants save that the order made in respect of legal representatives was limited to those who have acted against or are acting against the plaintiff in respect of associated matters.

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Date published: 12 January 2022