About this case:

• Citation:
  [2026] IESC 2
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Ms Justice Elizabeth Dunne

Delivering the leading judgment for the Supreme Court, Ms Justice Elizabeth Dunne explained that while family law proceedings are particularly sensitive, “it does not follow that the courts do not enjoy the same powers to control such proceedings and prevent abuse of their process as they do in other civil law proceedings”.

Background

The appellant and the respondent were formerly in an intimate relationship. The parties became estranged and since 2012, engaged in proceedings concerning access and maintenance of their minor child.

On 8 December 2015, the District Court varied a previous order for access prompting the respondent’s appeal to the Circuit Court.

After more than forty court listings, the Circuit Court made a final determination on access and maintenance on 23 May 2022 and ordered the appellant to pay 50 per cent of the total legal costs incurred by the respondent, attributing increased costs to his unmeritorious conduct.

In response, counsel for the appellant suggested that the issue of repeated litigation could instead be dealt with by way of an Isaac Wunder order. The Circuit Court accepted this submission and made an order restricting the appellant from taking any further proceedings against the respondent without first obtaining leave of the Circuit Court.

The High Court

Following an ex parte application to the High Court, the appellant was granted leave to bring judicial review proceedings challenging the Isaac Wunder order, alleging that the Circuit Court admitted into evidence material neither on affidavit nor adduced in oral testimony and had not permitted cross-examination of the respondent.

Following a subsequent application of the respondent, the grant of leave was set aside where the appellant failed to disclose the history of litigation between the parties and where his affidavit was grossly misleading. 

Mr Justice Garrett Simons also determined that the Circuit Court could not frustrate the exercise of the High Court’s supervisory jurisdiction by obliging a party to obtain permission from the Circuit Court before instituting judicial review proceedings.

The Court of Appeal

On appeal, the Court of Appeal upheld the decision to set aside the grant of leave, but varied the High Court’s orders in circumstances where the non-disclosure was not material to the appellant’s challenge to the Isaac Wunder order.

The parties subsequently agreed that the Isaac Wunder order would be quashed and asked the court to hear a new application by the respondent for a fresh order.

The Court of Appeal ultimately determined that an Isaac Wunder order was warranted, noting inter alia that the appellant used litigation to harass and oppress the respondent, had engaged in a pattern of seeking to employ judicial review proceedings to frustrate the outcome of proceedings decided against him, and had failed to pay the costs of previous proceedings wherein he was unsuccessful.  

On appeal, the Supreme Court granted leave to appeal on issues including whether a court dealing with applications for child access and maintenance is entitled to make an Isaac Wunder order against a party to those proceedings, and if so, the basis on which such an order can be made and whether the Court of Appeal erred in making an Isaac Wunder order.

The Supreme Court

Ms Justice Dunne observed that the question of the courts’ entitlement to make Isaac Wunder orders in family law proceedings pertaining to child access and/or maintenance disputes has never been comprehensively addressed by the Supreme Court, and raises distinct considerations including the courts’ obligation consider the “best interests” of the child under Article 42A of the Constitution, the affected parent’s right of access to the courts under Article 40.3, and the rights guaranteed by the European Convention on Human Rights (ECHR). 

Having considered the relevant jurisprudence on inter alia access to justice, Isaac Wunder orders, contempt, striking out proceedings which are bound to fail or constitute an abuse of process and Article 42A, the judge highlighted that “it is hard to see how the pursuit of endless litigation by one party against another parent in family law proceedings could be justified by reliance on ‘the best interests of the child’… The stress, strain and expense caused to a party who is subjected to constant applications will undoubtedly have some adverse effect on the child concerned…”

Ms Justice Dunne continued: “If it was truly necessary and proper to bring proceedings relating to custody, access or maintenance in respect of a child by reason of a change in circumstances, then there would be no inhibition in bringing such proceedings.”

As to the issue of proportionality, the court observed that the right of access to the courts must be balanced with the rights of defendants not to be repeatedly made the subject of vexatious litigation or litigation that is bound to fail, and that there is nothing in the ECHR jurisprudence that prohibits or prevents restrictions being placed on an individual’s right of access to the courts in appropriate circumstances.

Agreeing with the proposition that family law proceedings are particularly sensitive and that attention must be paid to the best interests of children involved in such proceedings, Ms Justice Dunne opined: “Nevertheless, it does not follow that the courts do not enjoy the same powers to control such proceedings and prevent abuse of their process as they do in other civil law proceedings.”

As to the Circuit Court’s jurisdiction, Ms Justice Dunne agreed with the reasoning of Mr Justice Simons in concluding that the Circuit Court cannot make orders ousting the High Court’s jurisdiction, but “where the making of an Isaac Wunder order is part of a court’s panoply of powers to protect the administration of justice from an abuse of process, it would be difficult to see why the Circuit Court could not make such orders, if necessary and appropriate”.

The judge further highlighted that as a court established under the Constitution, the Circuit Court “has an inherent power to make Isaac Wunder orders in order to protest the administration of justice”.

As to the District Court, Ms Justice Dunne was similarly satisfied that the District Court cannot make an order restricting the issue of proceedings in the Circuit Court, and that while its jurisdiction is less extensive than the Circuit Court, “it seems to me that the District Court, no less than any other Court, is entitled to ensure that proceedings before it are not used in such a way as to amount to an abuse of process”.

Ms Justice Dunne clarified that she did not take the view that the “local and limited” jurisdiction of the District and Circuit Courts is such that an order made in one District or Circuit cannot have legal effect outside the boundaries of that District or Circuit, and thus, an Isaac Wunder order made by those courts is valid country-wide but will only be effective in a District or Circuit in which the relevant court would otherwise have jurisdiction to deal with the matter.

As to the challenge to the Isaac Wunder order imposed by the Court of Appeal, the Supreme Court disagreed that the order was disproportionate and unduly restrictive, finding that the respondent was subjected to a “barrage of unmeritorious litigation” at great cost to her, “both in terms of stress and anxiety and in financial terms”.

Finding no basis for overturning the decision of the Court of Appeal, the Court considered the powers which a court may generally exercise when presented with a serial litigant, noting that there are a wide number of remedies available to deal with such litigants and that Isaac Wunder orders are made only as a last resort and must be appealable, provided that the order is made by a court from which an appeal lies.

Ms Justice Dunne also clarified that where the subject of an Isaac Wunder order makes an application for leave to issue further proceedings, the court must consider the history of the previous litigation between the parties and if legitimate grounds for bringing proceedings are established “then, provided that there is an arguable claim to be brought and the applicant for leave has a proper interest in litigating the issue, leave should be granted”.

Finally, the court observed that the availability of the Digital Audio Recording (DAR) is an important safeguard ensuring the integrity of proceedings where a party misrepresents what occurred on a previous occasion and that through the courts’ powers and procedures, the “twin objectives” of protecting parties from repetitive or vexatious litigation and protecting the judicial process from misuse of court time and resources are realised.

Conclusion

Accordingly, the Supreme Court dismissed the appeal and affirmed the order of the Court of Appeal.

G.M. v M.M. [2026] IESC 2