The Court of Appeal upheld an order requiring Gerard Monks to obtain leave before bringing further proceedings concerning four parcels of land, including a 1.6-acre plot. It did so despite procedural concerns about how the High Court reached its decision, finding that the judge’s familiarity with the history of the dispute justified the order in the circumstances.
In a separate judgment delivered on 17 December 2019, Mr Justice Maurice Collins agreed with Mr Justice Haughton’s judgment and emphasised that an Isaac Wunder order restricting a person’s access to the courts is exceptional. Such an order is not absolute: the person subject to it may apply for leave to issue proceedings.
Collins said courts should be extremely reluctant to impose the restriction and must scrutinise whether further litigation is likely to be a clear abuse of process. Any order should be explained so that it can be reviewed and framed as narrowly as practicable. It should not follow routinely from the dismissal of a claim.
The judgment noted two procedural concerns. The application before the High Court on 9 October 2017 related only to future proceedings concerning McCabe’s Field, while the order covered four parcels listed in a summons in proceedings begun on 6 October 2019. The High Court judge also dismissed those later proceedings as vexatious, bound to fail and an abuse of process without a motion seeking their dismissal before him.
Collins nevertheless agreed that the judge was justified in striking out the later proceedings and extending the order to all four parcels. The judge had heard earlier proceedings concerning McCabe’s Field and was familiar with a 1992 contract for sale, 2000 proceedings, a 2003 court order and settlement terms. Those terms included payments to Monks on the basis that he had vacated all the lands, the judgment said.
The court said Monks could seek leave from the High Court to bring a claim concerning the 1.6-acre plot if he could formulate an arguable claim and a plausible basis for being permitted to litigate despite the history of the dispute. Collins noted that he had not done so to date.