A man has been restricted by the Supreme Court in bringing further family law litigation against his ex-partner after subjecting her to protracted litigation over more than 13 years, involving estimated costs to her of more than €300,000.
The man lost most of his applications but, despite multiple costs orders against him in the woman’s favour, he failed to pay any costs to her.
It is “an unfortunate fact that family law proceedings can become a form of lawfare in which court processes are misused by one party to oppress, harass and destabilise the other”, said Mr Justice Maurice Collins in his judgment.
The case raised important issues about whether litigation restriction orders known as Isaac Wunder (IW) orders can be made in family law cases. Wider issues concerning the courts’ jurisdiction regarding serial and vexatious litigants were also addressed.
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A party subject to an IW order cannot take proceedings against a specific party or parties without prior permission of the relevant court.
The Attorney General, who was invited by the court to make submissions to assist with its consideration, said there was no reason why IW orders should not be made in family law cases, but they should be made sparingly. The Attorney accepted that any constraint on a parent’s right to take proceedings should be considered “in a child-centred manner”.
On Friday, the five-judge court unanimously dismissed the man’s appeal against an IW order granted by the Court of Appeal (CoA) in June 2024.
The CoA decided that permitting him an unrestricted right to litigate against the woman would be “unfair and oppressive” to her and a waste of scarce court time and resources.
It said he was responsible for the unreasonable or unnecessary extension or prolongation of the litigation. While some applications by him may have been partly brought for a proper child access purpose, it appeared his purpose also included harassment and oppression of the woman, it said.
His aggressive treatment of her caused her to obtain a safety order against him, it noted. He was also found to have made “serious” non-disclosure and “grossly misleading” statements when he got court permission for judicial review. This permission was later set aside.
A similar IW order was previously granted by the Circuit Court.
The man and woman had a child before their relationship of less than two years broke down. The man’s lawyers argued an IW order was incompatible with family law litigation and breached his rights and the rights of his child under the Constitution and the European Convention on Human Rights.
Giving the court’s main judgment, Ms Justice Elizabeth Dunne rejected all grounds of his appeal and awarded costs against him to the woman.
The litigation has occurred at great cost to her, in terms of stress and anxiety and in financial terms, and restricting it was an “entirely appropriate” response to his behaviour, the judge said.
Article 42A of the Constitution regarding the rights of the child “cannot avail a party who has engaged in endless litigation” as this could not be considered “in the best interests of the child”, she said. An IW order was also proportionate.
When it is “truly necessary” to bring proceedings, a litigant will not be barred by virtue of an IW order from doing so, she said.
The High Court can, in an appropriate case, make IW orders relating to Circuit and District Court cases, she held. While the Circuit Court cannot make an order “ousting” the jurisdiction of the High Court, both it and the District Court have inherent power to make an IW order which, providing the order was not “overbroad”, is binding throughout the country.
Where a person subject to an IW order seeks leave to bring proceedings, the court should consider the history of the proceedings and whether there are “legitimate” grounds for the complaint.
Judgments dismissing the appeal were also delivered by judges Gerard Hogan, Brian Murray and Maurice Collins.
The woman has estimated her legal costs of the litigation over 13 years, involving more than 100 court attendances and with most applications decided in her favour, at more than €300,000. The litigation has had a significant personal impact on her and caused significant stress and anxiety for the child, she said. She alleged persistent failures by the man to comply with court orders, including payment of maintenance and costs.
In disputing he brought an inordinate amount of litigation, the man said both parties availed of their right of access to the courts and it was not unreasonable to do so.
