ABUSE OF PROCESS AND ISAAC WUNDER ORDERS
An Isaac Wunder Order is an order of the court that requires a litigant to apply to court for its prior consent to issue further proceedings against the same party against whom it is found they have already initiated proceedings that are an abuse of process.
The name comes from the 1967 case of Wunder v Irish Hospital Trusts (1940) Limited.
In the Wunder case, the Plaintiff claimed to have a winning ticket for a draw in 1948 in a sweepstakes operated by the Defendant. However, the claim was only presented in 1962 and the Plaintiff claimed that he accidently destroyed the winning ticket. A number of actions were brought by the Plaintiff against the Defendant. The Supreme Court held (on appeal) that the proceedings were vexatious and made an Order requiring the Plaintiff to seek leave of the court if further proceedings were to be initiated by the Plaintiff.
In the case of Keaveny v Geraghty in 1965, the Supreme Court found that the High Court had an inherent jurisdiction to dismiss or stay proceedings and also ordered that the Plaintiff must first seek leave of the High Court to bring future proceedings in order for those proceedings to be valid.
There has been more recent case law where successful applications for Orders have been granted also.
BASIS OF AN ORDER
Points that will be considered by the court:
- Has there been habitual and persistent institution of vexatious proceedings
- Are the proceedings brought without any reasonable grounds
- Have the proceedings been brought for an improper purpose
- Have costs of previous unsuccessful claims been paid
- Have there been persistent unsuccessful Appeals
If an Order is granted, that litigant must seek leave of the court to commence proceedings which is a subjective test.
- These Orders are granted in limited circumstances given the impact of the Order of the constitutional rights of a potential Plaintiff;
- Where there is an abuse of process proven, the Order may be granted as a proportionate and appropriate response;
- The UK have a similar Order set out in the Civil Practice Rule 3.11 – Practice Direction 3C.
If you have any queries on any aspect of litigation, please do not hesitate to contact Niall MacCarthy or Brendan Dillon on (01) 2960666.