The Court of Appeal has dismissed an appeal by LB against the striking out of his third set of proceedings challenging legislation used to make property adjustment orders in his divorce case.
In a judgment delivered on 8 June 2023, Mr Justice Binchy, with the agreement of Ms Justice Ní Raifeartaigh and Ms Justice Pilkington, upheld the High Court’s decision that the claims were barred because the central constitutional issues had already been decided in earlier litigation. The court also upheld the conclusion that a claim based on Article 17 of the EU Charter of Fundamental Rights could not be brought in fresh proceedings because it could have been raised in the 2011 case.
LB sought declarations that the Oireachtas lacked power to enact property provisions in the Family Law Act 1995 and Family Law (Divorce) Act 1996. He also sought to have orders made in his family law proceedings declared a nullity and to recover property and money he said he had lost as a result.
The dispute followed a divorce granted in 2004. On appeal from the Circuit Court, the High Court ordered the family home to be sold, with 40 per cent of the proceeds allocated to LB and 60 per cent to his former spouse. LB had previously challenged the legislation and the property orders in proceedings that concluded in the Supreme Court in 2009 and 2015.
The Court of Appeal said LB’s current constitutional arguments substantially repeated those previously rejected. It noted that the earlier decisions had upheld the legislation, including on the basis that the constitutional requirement to make proper provision for a spouse on divorce could qualify property rights. The court found no extraordinary circumstances to justify reopening those issues. It also rejected LB’s argument that courts were obliged to reconsider a constitutional challenge each time it was brought.
The High Court had struck out the proceedings in April 2022 as res judicata, vexatious and abusive, and ruled that the Charter claim was barred under the rule in Henderson v Henderson. The Court of Appeal said the High Court was also right to hear the respondents’ strike-out motion before LB’s motion for judgment in default of defence, as the latter could matter only if the strike-out motion failed.
The respondents cross-appealed the High Court’s refusal to make an Isaac Wunder order restricting further proceedings. The Court of Appeal dismissed that cross-appeal after accepting LB’s assurances that he would bring no further proceedings connected with the family law cases or the present claims. The assurance did not prevent him from seeking leave to appeal to the Supreme Court or pursuing an appeal if leave were granted.
The court stated its provisional view that the respondents should receive their costs of the main appeal and that LB should receive expenses relating to the cross-appeal. Either side could seek a short supplemental hearing on costs within 14 days of judgment.