About this case:

• Citation:
  [2023] IEHC 95
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

The applicant had issued the proceedings after the Circuit Court had made certain orders in his family law case, which included that he pay €3,275 for maintenance and €70,000 in costs. An Isaac Wunder order had also been made against the applicant.

Delivering judgment in the case, Mr Justice Garrett Simons held that it was improper to invoke the supervisory jurisdiction of the High Court by exaggerating events to create an impression that there had been a significant error. The misstatements in the application for judicial review went to the heart of the applicant’s case and his application did not meet the threshold for the grant of leave.

Background

The applicant was previously in a relationship with the respondent. They had a child together but later became estranged. Subsequently, they engaged in District Court litigation involving child access and maintenance payments.

Certain orders were made by the District Court in December 2015 and the respondent appealed to the Circuit Court. It took several years for the appeal to conclude, with final orders being made in May 2022. The proceedings had been listed in the Circuit Court on more than 40 occasions.

The Circuit Court order addressed several matters. It adjusted certain access arrangements for the child and directed the applicant to pay outstanding maintenance to the respondent in the sum of €3,265. The applicant was also directed to make ad hoc contributions towards the child rearing expenses incurred by the respondent.

Further, the applicant was directed to pay a portion of the respondent’s legal costs. These costs were measures in the overall sum of €140,720 and the applicant was required to pay half of these costs.

Finally, the Circuit Court made an Isaac Wunder order restraining the applicant from taking any further proceedings in the District Court, Circuit Court or High Court.

The applicant issued judicial review proceedings which sought to challenge the order directing payment of outstanding maintenance. No other aspect of the order was challenged in the pleaded case.

In August 2022, the applicant filed a statement of grounds and a verifying affidavit. An ex parte application for leave to bring the judicial review proceedings was made to Mr Justice Simons as the vacation judge. Leave was granted in the case.

The applicant had three main complaints regarding the Circuit Court hearing. First, it was alleged that the trial judge admitted evidence which was not on affidavit or adduced during oral testimony. Second, it was alleged that the Circuit Court refused to permit the cross-examination of the respondent by the applicant’s counsel. Finally, it was alleged that the applicant was denied the right to submit evidence supporting his claim.

The applicant stated that the respondent was allowed to rely on a handwritten note to support her claim for maintenance and that there was no formal report vouching these monies.

After leave had been granted in the judicial review proceedings, the respondent issued a motion seeking to set aside the grant on the basis that the applicant failed to disclose all material facts at the time of his application. It was also claimed that the applicant was acting in breach of the Isaac Wunder order.

High Court

The court began by considering the Isaac Wunder order. It was noted that the jurisdiction of the High Court to make such an order was derived from the inherent jurisdiction of the court (see Kearney v. Bank of Scotland plc [2020] IECA 92). It was held that there were rare circumstances in which it would be appropriate for a court to make an Isaac Wunder order of its own motion. A party should usually be heard before any decision was made (see Houston v. Doyle [2020] IECA 289).

It was unnecessary to consider the precise jurisdiction for the Circuit Court to make an Isaac Wunder order, but the court held that the Circuit Court could not make an order restraining a party from accessing justice in the High Court. The High Court exercised a supervisory jurisdiction over the Circuit Court. As such, the trial judge was incorrect to restrain the applicant’s ability to bring High Court proceedings by requiring permission from the Circuit Court.

Turning to the application to set aside leave, it was held that this jurisdiction should only be exercised in exceptional cases. Where an application involved a material non-disclosure, it may be appropriate to set aside leave (see Adams v. Director of Public Prosecutions [2001] 2 I.L.R.M. 401; Ryan v. Governor of Mountjoy Prison [2020] IESC 8).

An applicant was under a duty of disclosure to ensure that the judge has a full grasp of the facts and issues in a case. An applicant could not conceal anything which ought to be disclosed, although a degree of tolerance had to be granted for human error (see Director of Public Prosecutions v. Judges of the [Stated Place] Circuit Court [2021] IEHC 505).

Applying the law to the facts, it was apparent from the transcript and affidavits in the Circuit Court proceedings that the applicant’s characterisation of his case was “grossly misleading”. It was simply untrue that there was no evidence of outstanding payments before the trial judge. It was also untrue that counsel sought to cross-examine the respondent.

Further, it was incorrect to say that the respondent had no supportive affidavit as she had in fact sworn three affidavits. The court also held that, in general, the applicant failed to disclose the history of the proceedings, which created the “false impression” that the Circuit Court hearing had been conducted in a peremptory manner.

For completeness, the court also considered whether the applicant’s complaint might relate to the order to pay €70,000 in legal fees. There was a legal costs accountant’s report placed before the trial judge so there was no basis to say that the order was made without evidence. In any event, the applicant did not actually challenge the costs order and the matter was considered on a de bene esse basis.

Conclusion

The court made an order setting aside leave to bring the judicial review proceedings. Leave had been granted on the basis of an abuse of process by the applicant in failing to disclose all relevant information and creating a false impression of the Circuit Court hearing.

M v. M [2023] IEHC 95