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Insolvency Update: Serial Litigants and the Rise of the Isaac Wunder Order

07 September 2017

The number of serial lay litigants abusing the Irish courts system has been on the rise. The refusal of these individuals to accept the consequences of final orders and their persistent re-litigation of issues which have already been determined is congesting the court system and frustrating the administration of justice. Consequently, the judiciary is increasingly prepared to combat serial litigants by granting relief to frustrated defendants in the form of an “Isaac Wunder” order.

What is an Isaac Wunder order?

Parties who have been granted orders for judgment and possession of property are increasingly being frustrated by serial lay litigants in their attempts to enforce these orders.

An Isaac Wunder order requires a litigant to apply to the court for its prior consent, before they can issue fresh proceedings against the same party, [1] or before he/she can issue proceedings in relation to matters which have already been determined by the court.

The order has been described as “the nuclear option” given its very serious consequences, principally the introduction of a barrier to accessing the court system. 

When are Isaac Wunder orders granted?

Irish courts have understandably been reluctant to restrict the right of access to the courts, except in exceptional circumstances.

In considering whether to grant such relief, the court must seek to balance two competing rights – the right of access to the courts for genuine applicants and the right to finality in litigation for successful parties.

The crux of the issue was articulated by the Court in the matter of James Kenny v An Bord Pleanála[2] where it said:

“A citizen has a constitutional right of access to the High Court but no entitlement to abuse that right”

Generally, before Isaac Wunder relief will be granted, it will have to be established that the initiated proceedings are vexatious and/or an abuse of process.

The most common indicators of vexatious behaviour are[3]:

  • the bringing of one or more actions to be determined
  • an issue which 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 be expected 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 cost of unsuccessful proceedings
  • where the respondent persistently takes unsuccessful appeals from judicial decisions.

In the recent case of Smith v ACC Loan Management Ltd & Others [2017] IEHC 505, Judge Twomey highlighted the issue, pointing out that the plaintiff and her daughter “seem to regard the issue of new proceedings and the registering of lites pendentes as some kind of cat and mouse game.”

Mrs Smith and her daughter had issued multiple sets of proceedings against ACC and a receiver appointed by ACC seeking orders on issues which were already the subject of final High Court determinations. In addition, previous appeals issued by Mrs Smith and her daughter to the Court of Appeal had also failed. Judge Twomey, in granting the Isaac Wunder reliefs, commented that it was necessary “to prevent an abuse of court resources”.

The plaintiffs, in that case, typify the type of litigants against whom Isaac Wunder orders are being made. One commentator[4] neatly distinguished these litigants as those:

  • who lose an initial action and then respond by continuously taking the same issue back to court;
  • who lose an action and then respond by continuously broadening the range of people involved in the dispute; and
  • who adopt litigation as a way of life and issue different sets of proceedings with no logical connection between them.

The vast majority of such litigants are acting without proper legal advice and, as a consequence, have little regard for the damage their actions are causing. That damage includes “the accumulation of legal costs, the waste of court resources, the reputational injury to the opposing party, and prejudice to the litigant himself, by the time an Isaac Wunder order is made”[5].

However, since January 2015, there have been at least 11 reported Isaac Wunder orders granted by the Irish courts. This indicates a marked shift in attitude from the courts in their willingness to grant such orders. Moreover, it is a reflection of the courts’ determination to protect the administration of justice by restricting the ability of serial lay litigants to issue multiple sets of spurious proceedings.

Conclusion

The Isaac Wunder order is an important relief available to parties who are being subjected to repeated, spurious and hopeless litigation. It creates a necessary obstacle for serial litigants who refuse to accept the finality of court orders. Moreover, the Isaac Wunder order is a crucial tool to prevent the ongoing waste of court resources at a time when pressure on the court system is greater than ever.

For more information, please contact a member of our Insolvency & Restructuring team.


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


[1] Wunder v Hospitals Trust [1967 SC] (unreported 24th January 1967)

[2] [2010] IEHC 321

[3] Riordan v Ireland (No 5) [2001 HC] 4 IR 463)

[4] Garrett Sammon: ‘Organised Pseudo-legal Commercial Argument’ Litigation: Challenges for the Administration of Justice in Ireland’ Dublin University Law Journal 2015, 38(1), 85-102

[5] Sammon (as above)

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