The High Court has refused an application to require a father to obtain court permission before bringing further proceedings, finding there was not enough evidence to justify the restriction.
The ex tempore judgment was delivered by Ms Justice Mary Rose Gearty on 13 February 2020 in judicial review proceedings between S. L. and M. L. The application for an Isaac Wunder order was made by the respondent, M. L., in response to judicial review proceedings brought by the applicant, S. L. The judge said the order application was the only matter considered in the judgment.
An Isaac Wunder order can prevent a person from bringing proceedings on a defined issue or against specified parties without first obtaining court permission. The court said such an order must be used sparingly because it restricts access to justice.
The judge said both parties had made multiple applications to different courts, and some applications appeared unnecessary or unwise. A general figure of about 70 applications was mentioned, but the evidence did not establish how many had been made by M. L. or show that he had initiated most of the hearings. The judgment also recorded that counsel acknowledged fault on both sides, and that the number of applications might have been predominantly attributable to M. L.
The judge did not decide the disputed family allegations or assess the reasonableness of earlier court orders. She said the evidence did not establish that M. L. lacked a genuine intention to maintain contact with his son. The parties’ litigation was focused on increasing access, and a grievance concerning a section 47 report appeared to be genuine, but the issues had not been fully opened or tested in evidence at this hearing.
The judgment noted that the current order prevented M. L. from direct access to his son indefinitely. The judge said she was not prepared to bar him from making another access application without permission, describing that restriction as disproportionate on the evidence before her. She also said she could not resolve access in this motion.
The court distinguished the English case relied on by S. L., noting that the evidence there included repeated challenges to independent professionals and dozens of applications. Here, habitual challenges to legal personnel or report authors had not been demonstrated. The judge said a future challenge to a report author or judicial ruling might support such an order if clearly vexatious, but that threshold had not been met. The application was refused, and there was no order as to costs.