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Cite as: [2019] IECA 309

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THE COURT OF APPEAL

Neutral Citation Number: [2019] IECA 309

Donnelly J.

Haughton J.

See Judgment by Collins J. [2019] IECA 309_1

Record Number: 2018 34

BETWEEN/

UDARAS EITLIOCHTA NA hEIREANN THE IRISH AVIATION AUTHORITY and daa

PUBLIC LIMITED COMPANY

PLAINTIFFS/RESPONDENTS

-AND-

GERARD MONKS AND MARK MONKS

DEFENDANT/APPELLANT

JUDGMENT of Mr. Justice Haughton delivered on the 17th day of December 2019

The order appealed

1. This is an appeal from an order of McGovern J. made on 9th October, 2017 in High Court

proceedings bearing Record Number 2017/245P on foot of a Notice of Motion dated 13th

July, 2017 in which the plaintiffs/respondents sought an order restraining the second

named defendant from issuing any further proceedings against the plaintiffs in respect of

lands known as McCabe’s Field contained in Folio DN2591, without prior leave being

granted by the Court.

2. Having recited that counsel for plaintiffs and the second named defendant in person were

present, the Order dated 9th October 2017 then recites: -

“And it appearing that the Second Named Defendant issued another set of

proceedings on Friday last the 6th day of October, 2017 bearing High Court record

number 2017/8964P and entitled Between/Mark Monks Plaintiff v. DAA Public

Liability Company and Udaras Eitliochta Na hEireann, Defendants (the New

Proceedings)

And Counsel for the Plaintiffs placing a copy of the New Proceedings before the

Court

And it appearing that the New Proceedings were served on A & L Goodbody

Solicitors this morning

And on reading a copy of the said New Proceedings

And on the application of said Counsel for the Plaintiffs for an Isaac Wunder order

against Mark Monks and for an Order striking out the New Proceedings issued by

Mark Monks on the 6th day of October, 2017 on the grounds that they are

vexatious and bound to fail

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And on hearing said Counsel for the Plaintiffs and the Second Named Defendant in

person

IT IS ORDERED that the New Proceedings bearing High Court Record No.

2017/8964 P be and the same are hereby struck out on the grounds that these

proceedings are vexatious, bound to fail and an abuse of process

And IT IS ORDERED that Mark Monks (the Second Named Defendant in the within

proceedings) be restrained from bringing any further proceedings against any party

in relation to any of the four parcels of lands referred to in paragraphs 1, 2, 3 and 4

of the First Schedule First Part to the Plenary Summons bearing High Court Record

Number 2017/8964 P without the permission of this court (the said First Schedule

First Part being appended as a Schedule to this Order)

And Mark Monks (the Second Named Defendant in the within proceedings)

confirming to the Court that he has registered a Lis Pendens in the New

Proceedings bearing High Court Record number 2017/8964 P

IT IS ORDERED that the Lis Pendens registered by Mark Monks on the 9th day of

October 2017 in proceedings bearing High Court Record Number 2017/8964 P

already referred to be vacated

and IT IS ORDERED that Mark Monks be restrained from registering any further

Lis Pendens in respect of any of the properties set out at paragraphs 1, 2, 3 and 4

of the First Schedule First Part to the above mentioned Plenary Summons bearing

High Court Record Number 2017/8964 P already referred to without the permission

of this Court

And on the application of said Counsel for the Plaintiffs for costs and on hearing

said Counsel and said Defendant

IT IS ORDERED that the Plaintiffs do recover as against the Second Named

Defendant the costs of this Motion and Order, such costs to be taxed in default of

agreement”

3. The said Order then set out in a schedule four parcels of land, as referred to in the First

Schedule First Part of the Plenary Summons bearing High Court Record No. 2017/8964 P,

as follows: -

“FIRST SCHEDULE

FIRST PART

1. ALL THAT AND THOSE part of the lands of Hunstown in the Barony of Coolock

County of Dublin containing 42.862 aces or thereabouts statute measure, being

part of the property comprised in Folio 329 of the Register County Dublin more

particularly delineated on a map thereof attached hereto and thereon shaded red

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and marked with the letter C, together with aright of way from the said property to

the public roadway along the way marked XY on the said map and thereon shaded

yellow.

2. The outer houses and buildings known as the “Twenty-two Cowshed, the Feeding

Shed and Calf Shed” adjacent to Hunstown House, being part of the property

comprised in Folio 329 of the Register County Dublin more particularly delineated

on the map attached thereto and thereon shaded red and marked with the letter D

1, 2 and 3 together with a right of way from the said property to the public

roadway along the way marked WV on the said map annexed hereto and thereon

shaded yellow.

3. ALL THAT AND THOSE part of the lands at Hunstown in the Barony of Coolock

and County of Dublin comprising 0.425 acres or thereabouts statute measure being

part of the property comprised in Folio 2591R of the Register County Dublin, more

particularly delineated on the map thereof attached hereto and thereon outlined in

red and marked with the letter A.

4. ALL THAT AND THOSE the dwelling house and premises situate at Huntstown I

the Barony of Coolock and County of Dublin being the property comprised in Folio

15150 of the Register County Dublin.”

It is not disputed that the third parcel, comprising 0.425 Acres and being part of

Folio 2591R, is McCabe’s Field.

Procedural History

4. In order to better understand why these orders were made by McGovern J., it is

necessary to refer to the procedural history of these and related proceedings.

5. These proceedings were commenced by Plenary Summons issued on 12th January, 2017

wherein the plaintiffs sought various injunctions restraining trespass by the defendants on

a single property, namely McCabe’s Field, being the property comprised in Folio 2591R.

The plaintiffs claimed to be the legal and beneficial owners and they required vacant

possession for the construction of a new Control Tower at Dublin Airport. On the 2nd

February, 2017, Costello J. granted interlocutory injunctions restraining trespass by the

Second Named Defendant. The orders were not applied to his brother, the first named

defendant who does not appear to have opposed the plaintiffs or taken any further part in

the proceedings. Following this, pleadings were then exchanged in the normal way

between the plaintiffs and the second named defendant, and a full trial took place before

McGovern J. on 27th/28th June, 2017. The Second Named Defendant appeared in person,

called witness evidence and gave evidence himself.

6. McGovern J. reserved his decision, and gave judgment on the 7th July, 2017. His core

findings were that the Plaintiffs had good title to McCabe’s Field, that the Second Named

Defendant had failed to establish ownership by adverse possession, and that the plaintiffs

were entitled to permanent injunctions in the terms of those granted by Costello J.

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McGovern J. accordingly made final orders on 7th July, 2017, including orders that the

Plaintiffs recover their costs from the Second Named Defendant, and an order granting

leave to the Plaintiffs to issue a motion seeking an order vacating the Lis Pendens then

registered against the property, which motion was to be returnable to 24th July, 2017.

This order was perfected on 14th July, 2017.

7. It is important to note that the judgment and order of McGovern J. dated 7th July, 2017

have never been appealed by the Second Named Defendant. However, the Notice of

Appeal herein lodged on 28th January, 2018 does set out grounds of challenge to that

decision. At the outset, this Court sought to clarify with Counsel for the Second Named

Defendant that the appeal did not extend to the judgment and orders of 7th July, 2017.

After some discussion Counsel confirmed that the appeal did not so extend, and was

confined to the orders made by McGovern J. on 9th October, 2017, which were perfected

on 3rd January, 2018. He indicated accordingly that the only relevant grounds of appeal

were those at 5 and 7 of the Notice of Appeal.

8. This has to be so, because even by January 2018 any appeal of the judgment and order

dated 7th July, 2017 would have been several months out of time, and no application was

ever made by the Second Named Defendant to extend time to appeal. Moreover, the DAR

Transcript of the hearing on 9th October, 2017 shows that the Second Named Defendant,

who appeared in person, was live to the possibility of appealing the order and judgment

of 7th July, 2017, and the fact that he was already out of time was the subject of some

discussion between the Second Named Defendant and McGovern J. It is clear from this

that the Second Named Defendant knew that he was out of time but took no steps at that

stage or subsequently to apply for an extension of time.

9. Returning to the procedural history, the Second Named Defendant, unbeknownst to the

Plaintiff, issued his own Plenary Summons on 23rd January, 2017 in proceedings entitled

The High Court Record No. 2017/542 P Between Mark Monks Plaintiff and DAA Public

Liability Company and Údaras Eitlíochta na hEireann the Irish Aviation Authority

Defendants. In those proceedings, the Second Named Defendant sought an order that he

was the beneficial owner of McCabe’s Field and ancillary declarations, and injunctive relief

against the defendants named therein. On issuing those proceedings the Second Named

Defendant registered a lis pendens against McCabe’s Field. That Plenary Summons was

never served (and a copy of it was not available in Court) and did not come to the

respondents’ attention until 23rd July, 2017 when they learned of the registration of the

lis pendens.

10. Accordingly, following the judgment and order of 7th July, 2017 the Plaintiffs in the

present proceedings issued two Notices of Motion on 13th July, 2017, both returnable to

24th July, 2017. The first one, in the present proceedings bearing Record No. 2017/245 P,

sought: -

“1. An order restraining the Second Defendant from issuing any further proceedings

against the Plaintiffs in respect of lands known as McCabe’s Field contained with

Folio DN2591 without prior leave being granted by this honourable Court;

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2. Further to such further orders this honourable Court shall seem appropriate; and

3. Costs.”

11. The second Notice of Motion was issued in the proceedings bearing Record No. 2017/542

P, and in it D.A.A. and I.A.A. as defendants sought the following orders: -

“(1) An order striking out the herein proceedings on grounds that the proceedings are

frivolous, vexatious, and bound to fail and an abuse of the process.

(2) An order vacating the lis pendens registered by the Plaintiff on the 23 January 2017

in respect of the property known as McCabe’s Field contained in Folio DN2591.

(3) An order restraining the Plaintiff from issuing any further proceedings against the

Defendants in respect of the lands known as McCabe’s Field contained in Folio

DN2591 without prior leave being granted by this Honourable Court.

(4) If necessary, an order granting entry of these proceedings into the commercial list

grounded on Order 63 Rule 1(b) of the Rules of the Superior Courts.

(5) Such further or other Order as to this honourable Court shall seem appropriate; and

(6) Costs.”

12. Both motions were grounded on affidavits sworn by Kim O’Neill on 12th July, 2017 and

were returnable to 24th July, 2017, that date having been fixed in court with no objection

by the Second named Defendant. Subsequently, at the Second Named Defendant’s

request because he was going to be on holidays, the hearing date was deferred to 31st

July, 2017. He did not file any replying affidavits.

13. It appears that on the morning of 31st July, 2017 the Plaintiff’s solicitor Mr. Gill received a

text from the Second Named Defendant to say he had difficulties in getting to Court. This

prompted Counsel for the Plaintiffs to indicate to McGovern J. that they would be content

to leave over the applications for Issac Wunder Orders, but that they wished to proceed

with the application to strike out the proceedings bearing Record No. 2017/245 P, and to

vacate the lis pendens.

14. The motions proceeded to that limited extent on 31st July, 2017 and in the proceedings

bearing Record Number 2017/542 P McGovern J. made an order striking out the

proceedings on the grounds that they were “frivolous, and vexatious, and bound to fail

and an abuse of the process”, and ordered that the lis pendens registered on 23rd

January, 2017 in respect of McCabe’s Field be vacated. He also ordered costs against the

Second Named Defendant. McGovern J. then adjourned the balance of the application for

an Issac Wunder Order, together with the application for a similar order in the present

proceedings, to 9th October, 2017.

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15. The Second Named Defendant was duly notified of the orders made on the 31st July,

2017. No appeal was lodged in respect of those orders, and no application for an

extension of time in which to appeal was ever made. Nor was any complaint made about

the matters proceeding, to the limited extent that they did, on 31st July, 2017 in the

absence of the second named defendant.

16. No replying affidavit was filed by the Second Named Defendant in the period between

31st July, 2017 and 9th October, 2017.

17. On Friday 6th October, 2017 the Second Named Defendant issued a further Plenary

Summons being that bearing Record Number 2017/8964 P (“the New Proceedings”), and

served this on the respondents’ solicitors A & L Goodbody. These are the further

proceedings which were struck out by McGovern J. on 9th October, 2017 on the grounds

that they were “vexatious, bound to fail and an abuse of the process”. In those

proceedings Mr. Monks claimed firstly an order that he is the beneficial owner of the four

properties described in the Schedule, as set out in full earlier in this judgment. Secondly

he sought a declaration that the Contract of Sale dated 5th November, 1992 concerning

this property and made between James Monks, his spouse Ellen Monks and DAA Public

Limited Company “is a fraudulent, null, void and of [sic] legal effect.” Thirdly he sought a

declaration that the DAA Public Liability Company “coerced James Monks to enter into the

Contract of Sale dated 5th November, 1992… in the knowledge that the said James Monks

was seriously ill at that time.” The General Endorsement of Claim goes on to seek

numerous other orders including declarations, injunctive relief and damages, that may be

characterised as ancillary to the first three pleaded reliefs.

18. Counsel for the Plaintiffs/Respondents brought the New Proceedings to the attention of

McGovern J. on 9th October, 2017. In the course of the hearing, at which the Second

Named Defendant was present in person, he confirmed that he had also applied to

whether it had yet been registered.

19. The Transcript of the hearing before McGovern J. on 9th October, 2017 shows that the

appellant argued variously that the New Proceedings related to different lands, and

related to the Contract of Sale dated 5th November, 1992, and concerned matters that

were not litigated before McGovern J. or the subject of his judgment and order of 7th

July, 2017, which concerned only McCabe’s field. He argued variously that the “land was

sold too cheap” and that his father’s and mother’s signatures were “fraudulent”, and that

his father had been ill and had been taken out of bed and brought in to sign the contract.

Ruling in the High Court

20. The transcript of the hearing records that McGovern J. in a short ex tempore ruling

stated: -

“It’s frankly beyond belief that in light of my judgment delivered in July, and

everything I said therein, that on the 6th of October, within the last few days, Mr.

Monks has issued further proceedings which make various claims in relation to what

Page 7 ⇓

is described as “the property” and the properties described in the First Schedule.

And the properties described in the First Schedule are four pieces of land, which are

precisely the four pieces of land which Mr. Monks’ late father had sold to Aer Rianta

on the 23rd December, 1992. And I am absolutely satisfied that the latest

proceedings, bearing Record No. 2017/8964 P are bound to fail. They are

vexatious, they are an abuse of process, having regard not only to the earlier

proceedings before me but the earlier proceedings before Kearns J. and the order

which he made many years ago. I am going to strike out those proceedings on the

basis that they are bound to follow and on that basis they are vexatious and an

abuse of process. I am going to make an Issac Wunder order restraining the

defendant… in proceedings 2017 number 245 P… from bringing any proceedings

against any party in relation to any of the four parcels of land referred to in the

First Schedule of the Plenary Summons in the proceedings bearing Record No.

2017/8964 P…”

The Appeal

21. In the Grounds of Appeal, at para. 5, the Appellant pleads that the New Proceedings

should not have been struck out as they “relate to a completely different subject matter”.

At para. 7 the Appellant pleads that he was “not given an opportunity to litigate the

proceedings in full before this honourable Court.” The Appellant’s written Submissions

argue at para. 5.6 that the Appellant has been denied access to the courts contrary to

Article 6.1 of the European Convention on Human Rights and article 43 of the

Constitution, and the submission is made at para. 6.6 that “The legal issue he seeks to

have heard has not been previously litigated, it is not vexatious and frivolous and is a fair

issue to be tried.”

22. In the course of oral argument counsel for the appellant accepted that the third parcel

described in the First Schedule First Part in the New Proceedings describes McCabe’s Field

and therefore cannot be re-litigated. Counsel further accepted that the First Schedule

First Part made a claim to more land than his client was now asserting was his. Indeed

the pleaded claim appears to bear little or no relation to the claim that counsel articulated

on the appellant’s behalf in this court. Counsel explained that the claim that the appellant

desires to pursue in the New Proceedings is in fact limited to a plot of some 1.6 acres

situate “across the road from McCabe’s Field, beside the pub” which the appellant claims

was excluded, or intended to be excluded, from the 1992 Contract for Sale, and in respect

of which he claims beneficial ownership. This plot appears to be part of property first

described in the Schedule (which appears now to be part of Folio 105077F). There was

however no evidence on the Affidavit before the High Court or in this court supporting any

such claim and when invited to identify the legal basis for such claim, counsel for the

appellant was not really able to do so.

Decision on the New Proceedings

23. This court is satisfied that any such claim by the appellant, or indeed any claims by him to

ownership of any of the lands described in the Schedule to the New Proceedings, or to

invalidate the 1992 Contract of Sale, are bound to fail, for a number of reasons: -

Page 8 ⇓

(1) The Contract for Sale dated 5th November, 1992 is made between James Monks,

the appellant’s father as vendor of property owned by him and it was endorsed by

Ellen Monks, as his spouse, and it agreed to sell the four parcels of property to Aer

Rianta for IR£340,000. The appellant was not a party to that Contract. James

Monks died in 1996 without challenging the validity of the Contract for Sale. While

the appellant in his evidence before McGovern J. in June 2017 asserts he was the

executor to his father’s estate, no proceedings were ever brought on behalf of

James Monks’ estate challenging the validity of the 1992 Contract for Sale.

(2) In 2000 Aer Rianta issued proceedings in the High Court entitled Aer Rianta

Cuideachta Phoiblí Theoranta Plaintiff and Mark Monks Defendant bearing Record

No. 2000/10996 P (“the 2000 Proceedings”) against the appellant seeking vacant

possession, an injunction and the payment of certain arrears in respect of the

subject lands, including McCabe’s Field. The appellant was at all material times

legally represented, but did not deliver any defence. On foot of a motion for

judgment in default of defence, by order dated 10th November, 2003 Kearns J. (as

he then was) ordered that the appellant “do deliver up possession of the lands

comprised in Folio 105077F, 329 and 2591R of the Register of County Dublin” and

also ordered that Aer Rianta recover against the defendant arrears of rent in the

sum of €37,729 and costs, with a stay of four weeks. That order erroneously

records that there was no attendance in Court by or on behalf of the defendant. It

is apparent from the evidence given by a solicitor Mr. Jerome Gallagher before

McGovern J. at the trial of the present proceedings on 27th June, 2017 that he was

present in court when Kearns J. made his order. Moreover, the appellant accepted

in his own evidence before McGovern J that he was notified of that order. That

order was never appealed by the appellant.

It is also important to note that although the three Folio numbers appearing in the

order of Kearns J. differ slightly from the Folio numbers given in the the Schedule in

the New Proceedings, it was not disputed, and I am satisfied, and that there is

absolute identity between the four parcels referred to in the Schedule and Folios

105077F, 329 and 2951R referred to in the said order, the explanation being that

Folio 105077F was carved out of the parent Folio 329.

(3) By Terms of Settlement dated 26th February, 2004 (“the Settlement”), entered into

between Aer Rianta of the one part and Mark Monks and Ella Monks of the other

part, in final settlement firstly of Circuit Court proceedings that had been brought

against Ella Monks and Mark Monks seeking possession of the property in Folio

105077F and secondly the 2000 Proceedings, the parties agreed on the following

terms: -

“(a) An Order for Possession of the lands and premises situate at Hunstown,

Cloghran in the County of Dublin, together with a stay on the said Order until

the 31st of December 2003.

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(b) The sum of £35,000 (€44,440.83) together with the interest thereon, currently

being held in a joint account between BCM Hanby Wallace, Solicitors and McAlinden

& Gallagher, Solicitors to remain on deposit pending the delivery up of vacant

possession of the lands and premises situate at Hunstown, Cloghran, in the County

of Dublin comprised in Folios 105077F, 329 and 2591 of the Register, County of

Dublin.

before the 30th of June 2004, the sum of €23,000 to be paid out of the said

account to Aer Rianta in full and final settlement of all arrears due and owing, the

balance to be released to the estate of the late James Monks, deceased.

(d) On the immediate delivery of vacant possession of the lands known as “McCabes

field” being part of the lands contained in Folio 2591 of the Registrar, County of

Dublin and of the out buildings and the yard adjacent to the Hunstown House,

contained in Folio 329 of the Registrar, Co. Dublin

(e) The Defendants agree to allow the Plaintiff access to and inspection/survey facilities

in relation to the lands, the subject matter of the proceedings herein, if necessary

during the period up to and including the 30th of June 2004.

(f) No Order as to costs.

3. Further to the foregoing agreements, the parties agree the following matters:

1. To have same made Orders of Court and where necessary received and

ruled.

2. No order as to costs.”

Once again it is clear that the Possession Orders to which the Appellant agreed in

the Settlement relate to exactly the same parcels of land as described in the

Schedule to the New Proceedings.

(4) At the time of the Settlement it is apparent that Aer Rianta’s solicitors still held

some €44,000 pending completion of the 1992 Contract of Sale, and as part the

Settlement it was agreed that on delivery up of vacant possession €23,000 would

be paid out to Aer Rianta and the balance would be released to the estate of the

late James Monks (clauses (b) and (c)). This was the subject of evidence in these

proceedings before McGovern J. on 28th June, 2017 from which it appears that on

28th June, 2004 the appellant’s solicitors McAlinden & Gallagher wrote to Aer

Rianta’s solicitors indicating that “All of the lands, the yard and McCabe’s Field are

available to Aer Rianta to take over on the 30th June.” The appellant agreed that

this letter was written on his instructions and enabled the release of the balance of

the monies due under the Settlement to James Monks’ estate. In relation to this the

appellant said in evidence (p. 73 of the Transcript) –

Page 10 ⇓

“My mother was fed up with all that was going on over the years and she

wanted out of over there. And she wanted the money…”

In his evidence at that time the appellant also accepted that he had signed the

Settlement, and that he had the benefit of legal advice at the time.

(5) Leaving aside any questions of the barring of claims by the Statute of Limitations or

otherwise (none of which were argued before this court) after the order made by

Kearns J. in 2003 and the Settlement made in 2004 it was no longer open to the

appellant to challenge the 1992 Contract of Sale whether in his own right or as

executor of the estate of James Monks, or to assert or maintain any claim or

proceedings to any part of the lands the subject of the New Proceedings.

(6) The claim to beneficial ownership of McCabe’s Field was fully heard and rejected by

McGovern J. in his judgment and order of 7th July, 2017, which has not been

appealed.

(7) In the Defence and Counterclaim delivered in the present proceedings on 28th

February, 2017, at para. 16 the appellant positively pleads the Contract for Sale

dated 5th November, 1992 but asserts that it does not include the property known

as McCabe’s Field. That plea did not suggest or assert that any other property was

excluded from the Contract, nor did it suggest that the Contract was fraudulent or

void.

(8) It is extraordinary that some twenty-five years after the Contract of Sale the

appellant should for the first time plead a claim that Contract was fraudulent and

void. It is also extraordinary that it was only at the hearing before this Court on

29th November, 2019 that counsel for the appellant first articulated on his behalf a

more limited claim to some ill-defined part comprising 1.6 acres within the lands

first described in the Schedule to the New Proceedings. The absence of any affidavit

evidence before the trial judge or this Court further undermines any such claim.

24. Accordingly, I am satisfied that the learned trial judge was entitled to find the New

Proceedings bound to fail, vexatious and frivolous, and to make orders dismissing them

and vacating the Lis Pendens registered by the appellant following the issue of those

proceedings. His orders in this regard should be affirmed.

Isaac Wunder order

25. The jurisdiction to make an Isaac Wunder order derives from the decision in Wunder v.

Irish Hospitals Trust (1940) Limited (unreported, Supreme Court, 24th January 1967) and

it must be looked at in the context of the constitutional right to access to the courts,

which is an important constitutional right, but not an absolute one. In Riordan v Ireland

(No.4) [2001] 3 IR 365, the Supreme Court noted (Keane CJ, p.370) noted the –

“inherent jurisdiction to restrain the institution of proceedings by named persons in

order to ensure that the process of the court is not abused by repeated attempts to

reopen litigation or to pursue litigation which is plainly groundless and vexatious”.

Page 11 ⇓

26. There is no doubt that the jurisdiction to grant an Isaac Wunder order should be exercised

sparingly. In McMahon v WJ Law & Co. LLP [2007] IEHC 51 at para 20, MacMenamin J.

identified the principles applicable: -

“Among features identified by Ó Caoimh J. in Riordan v. Ireland (No. 5) [2001] 4

I.R. 463 as justifying such an order, or militating against the vacating of such an

order already granted are: -

1. The habitual or persistent institution of vexatious or frivolous proceedings

against parties to earlier proceedings.

2. The earlier history of the matter, including whether proceedings have been

brought without any reasonable ground, or have been brought habitually and

persistently without reasonable ground.

3. The bringing up of actions to determine an issue already determined by a

court of competent jurisdiction, when it is obvious that such action cannot

succeed, and where such action would lead to no possible good or where no

reasonable person could expect to obtain relief.

4. The initiation of an action for an improper purpose including the oppression of

other parties by multifarious proceedings brought for the purposes other than

the assertion of legitimate rights.

5. The rolling forward of issues into a subsequent action and repeated and

supplemented, often with actions brought against the lawyers who have

acted for or against the litigant in earlier proceedings.

6. A failure on the part of a person instituting legal proceedings to pay the costs

of successful proceedings in the context of unsuccessful appeals from judicial

decisions.”

In his concurring judgment in the present case, which I have read in draft, Collins J

emphasises the exceptional nature of the Isaac Wunder jurisdiction and the care that

needs to be taken to ensure that such orders are made only where the court called upon

to make such an order is satisfied that it is proportionate and necessary. They are not to

be made simply because a proceeding has issued that is bound to fail, or because

considerations of res judicata or the rule in Henderson v. Henderson apply. I agree with

these observations which fall to be applied to the facts of this appeal.

Discussion

27. The earlier history of this matter has been set out in this judgment and was deposed to in

the two affidavits sworn by Kim O’Neill grounding the applications for Isaac Wunder

orders. It was also well known to the learned trial judge from hearing the substantive

action in these proceedings, and it is to some extent reprised in his judgment of 7th July,

2017. It is such that no proceedings relating to the Scheduled Property could be

maintained by the appellant after the order of Kearns J. and the Settlement entered into

by him in 2004. Insofar as he could make any claim to have acquired title by adverse

possession to McCabe’s field in the period post-dating the Settlement, that claim has been

rejected after a full hearing. If the appellant wished to pursue a claim in relation to any

part of the scheduled properties other than McCabe’s field, then that was the time to

Page 12 ⇓

pursue it, but he did not do so, not even in the proceedings bearing record number 542P

which he issued in January, 2017. The issue of the New Proceedings and the registration

of a fresh lis pendens in October 2017, just days before the plaintiff’s motion was due to

be heard is further evidence of the appellant’s willingness to institute vexatious and

frivolous proceedings that are bound to fail, and is an abuse of the process. Furthermore,

the registration of a lis pendens extending to the lands described in the Schedule, placing

as it does a significant burden on the plaintiff’s title, was clearly oppressive, and must

also be viewed in light of the fact that the lis pendens previously registered by the

appellant in respect of McCabe’s field had only been vacated by order of the High Court

on 31st July 2017.

28. In my view there was ample evidence before the High Court to justify the making of an

Isaac Wunder order not just in relation to proceedings that might relate to McCabe’s field,

but an extended order relating to all the property described in the Schedule in the New

Proceedings.

Fair procedures

29. A further argument was made at the appeal hearing that there was no notice of motion

before the High Court seeking the order actually made (as opposed to one limited to

McCabe’s field) and that as a matter of fair procedures the High Court should have

required a notice of motion and affidavit.

30. This argument was not made in the Notice of Appeal but was entertained because at the

time it was lodged the appellant was unrepresented.

Discussion

31. Counsel for the respondent accepted that neither of the notices of motion adjourned to

9th October, 2017 sought an Isaac Wunder order wider than one related only to

proceedings concerning McCabe’s field, but counsel argued that the trial judge

nevertheless had an inherent jurisdiction to make such an order.

32. It is of course true that the Rules of the Superior Courts do require the service of a notice

of motion setting out the reliefs sought, and one or more grounding affidavits setting out

the evidence relied upon. A respondent to a motion then has time in which to consider the

application and file a replying affidavit. The purpose is to give a respondent an

opportunity to consider the papers, to address the applicant’s evidence and arguments, to

put before the court their own evidence and argument, and to prepare for the hearing at

which they have an opportunity to respond. It is to comply with the principle of audi

alteram partem and the right to a fair hearing enshrined in the ECHR and protected by

the Constitution.

33. However, the Rules of the Superior Courts governing procedure must be considered in the

wider context that where the substantive right to a fair hearing is satisfactorily met, or

there is urgency or some other imperative, then compliance with a purely procedural

requirement may be dispensed with or may not be such as to justify quashing the order

made. Thus the Rules expressly provide that the High Court retains the power in some

circumstances to abrogate them e.g. by bridging time for serving a notice of motion.

Page 13 ⇓

Moreover, it frequently happens in practice that orders actually made do not fully or

accurately reflect the reliefs or orders initially sought. This is particularly so where an

injunctive relief is under consideration. The High Court has an inherent power to fashion

orders appropriate to the circumstances, and often does so when granting an injunction

where circumstances have changed or new facts have come to light between the date of

issue of a motion and the hearing, or where adjustment is required to ensure that the

order made is one that is reasonable and can be enforced. The Isaac Wunder order is a

form of injunctive relief, and the same considerations apply.

34. It must also be borne in mind that the Isaac Wunder order is not absolute in its effect.

The party subject to such an order can still apply to the court for liberty to issue

proceedings in relation to the same subject matter and is not thereby prevented from

initiating proceedings in respect of unrelated matters.

35. Counsel for the appellant did not disagree with the proposition that the trial judge had

inherent jurisdiction to grant an Isaac Wunder order. In addition to the evidence in the

affidavits of Kim O’Neill, the fact of the New Proceedings, and the registration of a fresh

lis pendens were admitted evidence before McGovern J. The appellant was present and

was made aware that an extended order was being sought; and he did in fact avail of his

opportunity to argue against the making of Isaac Wunder orders so far as the New

Proceedings were concerned. The DAR Transcript shows that he was given an appropriate

opportunity to argue his case. It cannot be said – and is not argued before this court -

that the second named defendant suffered any particular or general prejudice by the

absence of service of any new and expanded notice of motion or any further affidavit

evidence. In the circumstances, I am satisfied that there was nothing to be gained by

adjourning the application for further affidavits, or by requiring the plaintiffs to serve a

further notice of motion, or giving the appellant a further opportunity to argue his

position, none of which were requested at the time. Further in the light of my earlier

findings I am satisfied that the order made by McGovern J was appropriate and

proportionate, particularly in light of the fact that the second named defendant had never

previously made or litigated any claim to the Scheduled lands other than McCabe’s Field,

and the suggested claim to a 1.6 acre plot was raised for the first time before this court.

Decision

36. In the particular circumstances of the hearing before McGovern J on the 9th October,

2017 I am satisfied that the trial judge acted within his powers and that fair procedures

were observed.

37. This further ground of appeal must also be rejected and I would dismiss this appeal.

Result: Dismiss appeal