Dispute Resolution Update: The Courts as Gate-Keeper?

16 June 2016

It is no secret that in recent times the courts have seen an increase in frivolous and vexatious claims. In response, the Supreme Court has sought to clarify the limitations the courts can apply to such matters.

The Supreme Court has recently given guidance regarding the courts’ ability to limit the right of access to the courts and in extreme cases to strike out proceedings. This was in the context of a case brought by a serial litigant who had been involved in 31 separate sets of proceedings.

In Tracey T/A Engineering Design and Management v Burton & Ors [1] Mr Justice MacMenamin, giving the judgment of the Court, stated:

“The courts are entitled to monitor and police their own proceedings to avoid drawn out litigation.”

Broader issues

The judge then addressed broader issues in relation to issues which had arisen in other court proceedings, noting that:

“In all legal proceedings, whether a litigant is legally represented or not, a point may be reached where the conduct of such litigation is so dilatory, or so vexatious, or proceeds in a manner which either breaks or ignores rules of procedure, or where there is such egregious misconduct either before court, or in court itself, as to raise questions as to whether the right of access to the court should be limited, or, in extreme cases, whether a case should actually be struck out.”

He proposed that courts should consider whether:

  1. there has been abuse of process to such a degree that a claim should simply not be allowed to proceed; or
  2. such a claim should be allowed to proceed only under identified procedural conditions, or in a manner proportionate to the circumstances.

The judgment sets out a number of other relevant factors:

  1. the rights of the opposing party;
  2. the principle of finality of litigation;
  3. the resources of the courts; and
  4. the right to fair procedures.

Judge MacMenamin also noted that the courts can assist litigants and their representatives, subject to constitutional limitations, by considering the papers in a case before it is returnable in court and determining what is relevant and the real issues which have yet to be decided. He stated that the time has long since passed where litigants, or their lawyers can read documents “into the record of the court” or unnecessarily waste court time and that the time sought to hear the matter must be grounded on a realistic appraisal of the time, that such a case would “ordinarily and properly take”.


It is hoped that this judgment is invoked to limit some of the abuses evident in recent proceedings, including:

  • seeking to argue unstateable cases on peripheral issues;
  • joining parties against whom no relief can, or should be sought;
  • delivering incoherent legal submissions hundreds of pages long;
  • seeking to re-litigate issues that have already been finally decided; and
  • making scandalous allegations against judges and other officers of the court.

The reduction of such abuses should significantly reduce wasted legal costs for all parties who engage lawyers and seek to respect the legal system.

For more information, please contact a member of our Dispute Resolution team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

[1] [2016] IESC 16 

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