6 min read

It's a Wunderful world - Update in relation to Isaac Wunder Orders

Read more

By Louise O'Reilly


Published 03 November 2017


Insurers are often frustrated by persistent litigants in person who have little regard for legal costs or court time and for whom the threat of an adverse costs order is nothing but an empty threat. While the Courts are keen to protect a plaintiff's right of access to the Courts, the patience of the Court is not without limits.

An Isaac Wunder order is an order granted by the Court, limiting a plaintiff's right of access to the court. The order gets its name from proceedings in the 1960s in which Mr Issaac Wunder repeatedly brought groundless claims against Hospitals Trust Ltd (the Irish Sweepstakes) for their failure to pay out his alleged winnings. His claims were dismissed as frivolous and vexatious but Mr Wunder nonetheless appealed. In the light of these repeated attempts to get a more favorable ruling on the same issue, the High Court finally issued an order directing that Mr Wunder could take no further proceedings on the matter at the High Court without leave of the court being obtained first. This was affirmed by the Supreme Court.

In circumstances where a plaintiff's right of access to the Court is enshrined in the Irish Constitution however, the Courts tend to be reluctant to restrict this right. Even when such an Issac Wunder type order is granted, the Courts appear keen to ensure that the controls placed on a plaintiff are no more restrictive than absolutely necessary. It is noteworthy nonetheless, that it is within the inherent jurisdiction of the Court to make such orders.

An example of this arose in the recent case of McMahon & Anor v Bank of Scotland Plc. The matter concerned lay litigants who had borrowed from Bank of Scotland (Ireland) and owned properties over which a receiver had been appointed by Bank of Scotland. The Plaintiffs sued the Bank of Scotland for damages in connection with the Bank's appointment of a receiver over their properties. The Bank brought an application to have the proceedings struck out on grounds that they were frivolous, vexatious and an abuse of process and bound to fail. The Court then considered, on its own motion, whether to make an Issac Wunder order against the Plaintiffs.

In the judgment delivered by Mr Justice Twomey, it was noted that various bizarre allegations had been made by the Plaintiffs in the proceedings. It was alleged that by loaning money to the Plaintiffs, the Bank "created currency" and that "97% of the money in the minds of bankers is just numbers in a computer and could never be used or repaid or loaned as it is Virtual Money" and that the Plaintiffs [had] unknowingly taken part in the creation of currency and have been TRICKED into creating their own finance". The Plaintiffs also alleged that the Bank was guilty of fraud in the factum and fraud in inducement, both concepts which are not recognised as part of Irish law.

In considering whether to strike out the proceedings, the judge noted that in light of previous decisions on the specific points raised in relation to the effect of the cross border merger and the validity of the appointment of the receiver and in relation to the Unfair Terms in Consumer Contracts Regulations, the Plaintiffs' case was bound to fail.

In reaching his decision that the proceedings were vexatious, Mr Justice Twomey identified three particularly concerning factors about the Plaintiffs' claim. The first was that the case before the Court was in effect, an attempt by the Plaintiffs to re-litigate three prior cases (in relation to the effect of a cross border merger on the loans) which in his view, would amount to an abuse of process for the Plaintiffs to be able to do so. Secondly, the Plaintiffs had made accusations of very serious misconduct against lawyers acting for the Bank without a scintilla of evidence. Mr Justice Twomey described these as "scurrilous and vexatious". Thirdly, it appeared to the Court that the Plaintiffs believed that it was their entitlement to use any amount of court time to air their grievances with no regard for the public cost or the delay to other litigants. The Court criticised the conduct of the Plaintiffs throughout the action noting that they had made unnecessarily long submissions and resisted the Court's efforts to limit the time allowed for the hearing of submissions.

The Court went on to consider whether it was appropriate for the Court to grant an Issaac Wunder Order. According to Mr Justice Twomey, it was clear to the Court that the Plaintiffs were convinced of the strength of their case and would do everything to prove their case as they saw it. It was also relevant that as lay litigants, the Plaintiffs neither incurring legal costs nor could meet any order of costs made against them. There was therefore no incentive for them to conduct the hearing of the matter efficiently. It was noted that the Plaintiffs had been in Court on 144 different days on this matter and showed no inclination to see to condense the number of days involved in dealing with the issues at stake.

While the Court was of the view while their power to regulate the constitutional right of access to the Court should be invoked sparingly, it was decided that the Plaintiffs' rights should be regulated in this case due to the vexatious and scurrilous claims the Plaintiffs had sought to litigate, the abuse of process in which they had engaged in seeking to re-litigate cases in which they were not parties and their total disregard for the waste of the court resources involved.

So as to avoid any further waste of scarce resources, the Court made an Issac Wunder Order precluding the Plaintiffs from commencing any new proceedings which directly or indirectly concern the properties or borrowings the subject of these proceedings without prior leave of the President of the High Court or a judge nominated by him. Such leave was to be sought by an application in writing addressed to the Chief Registrar of the High Court.

Mr Justice Twomey noted that the restriction placed on the Plaintiffs was not absolute in that the order granted could be appealed and given the terms of the order, it only operated as a 'filter' on the Plaintiffs' constitutional right of access to the courts. The order did not deny the Plaintiffs their rights since to the extent that the Plaintiffs had, in the future, any meritorious claims that they wish to bring, these claims would be permitted by the President of the High Court. The purpose of an Isaac Wunder order was to ensure inter alia that the court resources are fostered for the benefit of other litigants both represented and lay litigants who have a right to have their meritorious claims heard as soon as possible.

This case is useful as an example of circumstances when limits can be put on a plaintiff's right of access and is a device to be borne in mind by insurers when faced with repeated vexatious litigation from litigant in person.