Isaac Wunder Orders in Family Law: Proportionate Restraint of Vexatious “Lawfare” and Supervisory Control Over Lower-Court Proceedings

1. Introduction

M v M (Approved) [2026] IESC 2 concerns the availability and constitutional/ECHR compatibility of so‑called “Isaac Wunder orders” (litigation restraint orders requiring prior leave before new proceedings may be commenced). The parties were G.M. (Applicant/Appellant) and I.M. (Respondent), with the Attorney General as Notice Party.

The appeal arose from a broad restraint order made by the Court of Appeal which prevented G.M. from instituting proceedings (including appeals) against I.M. in any court other than the Supreme Court without prior leave of the President of the relevant court (or nominee), for an indefinite period.

The “central issue” was whether Isaac Wunder orders may be made in family law proceedings, and if so, in what circumstances and subject to what conditions. Linked issues concerned: (i) whether the High Court can make such orders affecting Circuit/District Court proceedings, and (ii) whether the Circuit and District Courts themselves have power to grant such orders and, if so, how far that power extends.

2. Summary of the Judgment

Collins J agreed that the appeal should be dismissed and that Dunne J’s reasoning on the central issue should be followed: Isaac Wunder orders are not excluded in family law and, in appropriate cases, the best interests of the child may justify making such an order. He emphasised the reality that family litigation can become “lawfare”, misusing court processes to oppress or destabilise the other party.

He held that properly exercised restraint orders do not impermissibly infringe the constitutional right of access to the courts and are, in principle, not contrary to Articles 6 and/or 8 ECHR.

Collins J also agreed that the High Court (and appellate courts) may make orders regulating the commencement/maintenance of proceedings in the Circuit and District Courts. However, he diverged from colleagues on the scope of the Circuit and District Courts’ own power: he would confine any inherent/implied power of those courts to making restraint orders only within their respective Circuit/District, absent legislation or carefully designed rules.

3. Analysis

3.1 Precedents Cited

(a) Access to courts and its limits

Brandley v Deane [2017] IESC 83, [2018] 2 IR 741: cited for the proposition that access to the courts is a fundamental constitutional right of every person within the jurisdiction. Collins J used it as the starting point, then explained why restraint orders can still be constitutionally permissible.
Riordan v Ireland (No 4) [2001] 3 IR 365: relied on for the critical qualification that there is no right to use court processes to reopen litigation or pursue claims that are plainly groundless and vexatious.
Fitzsimons v Bank of Scotland Plc [2019] IECA 336: cited for the characterisation of the leave requirement as “a proportionate filtering mechanism” protecting an opposing party from oppressive and abusive claims and their often unrecoverable costs.

(b) Public interest, court resources, and the court acting of its own motion

Houston v Doyle [2020] IECA 289: cited to explain the public-interest dimension (finality of litigation; proper use of limited court resources) and why restraint orders may be made by a court of its own motion.

(c) Inherent powers and the genealogy of civil restraint

Kirwan v Connors [2025] IESC 21: Collins J relied on his own discussion of inherent powers as necessary incidents of constitutional courts, including that such inherent powers may be regulated by rules.
Bhamjee v Forsdick (Practice Note) [2003] EWCA Civ 1113, [2004] 1 WLR 88: used for two purposes: (i) as authority for the proposition that courts must have powers to maintain their character “as a court of justice”; (ii) as comparative guidance on structured “civil restraint orders”, including time limits and categorisation.
Cocker v Tempest (1841) 7 M & W 502: referred to as part of the historical lineage traced in Bhamjee.
Wunder v Hospitals Trust (1940) Ltd (Unreported, 11 April 1967): identified as apparently the first Irish instance of what is now labelled an “Isaac Wunder order”, while emphasising that there is no single form of order and terms vary.
Grepe v Loam (1887) 37 Ch D 168: noted as having been cited by Irish courts only recently and long after Wunder.
O' Malley v Irish Nationwide Building Society (Unreported, High Court, Costello J, 21 January 1994): cited for the view that such orders were once made only “in very rare circumstances”, contrasted with their increasing modern frequency.

(d) Supervisory jurisdiction over lower courts and restraining their proceedings

Ebert v Venvil [2000] Ch 484: quoted for the rationale that a High Court’s supervisory jurisdiction over lower courts is not confined to judicial review and may be exercised by injunctions restraining proceedings; emphasising all courts being part of the “same civil justice system.”
In re Connolly Brothers Ltd. [1911] 1 Ch. 731: cited within Ebert as supporting authority for restraining proceedings in an inferior court by injunction enforceable against the litigant.
Clune v Director of Public Prosecutions [1981] ILRM 17: discussed critically; Collins J expressed difficulty reconciling a quoted passage suggesting freedom from “intervention, direction or control” with the established reality of High Court supervision (including judicial review) and the acknowledged existence of a restraint jurisdiction.

(e) Contempt and injunctive controls relating to lower courts

R v Davies [1906] 1 KB 32, AG v O' Ryan and Boyd [1946] IR 70, AG v Connolly [1947] IR 213, State (DPP) v Walsh & Conneely [1981] IR 412: cited to illustrate the High Court’s undoubted powers relating to contempt before/of the Circuit and District Courts—supporting a broader supervisory conception beyond judicial review alone.

(f) The Circuit/District Courts’ own powers; structure; constitutional limits

SP v UG [2016] IEHC 693: relied upon (via Murray J’s reference) as capturing the rationale for lower courts having power to supervise/control their own processes.
State (Boyle) v Neylon [1986] IR 551: used to highlight that, although there is “one Circuit Court” and “one District Court”, their organisation and transfer mechanisms reflect statutory and constitutional architecture; transfer of a criminal trial required express legislative provision.
Permanent TSB v Langan [2017] IESC 71, [2018] 1 IR 375: central to Collins J’s caution about conferring overly broad “nationwide” competence on the Circuit Court given Article 34.3.4°; the Circuit Court must remain “limited” and cannot become a surrogate court of full original jurisdiction. The decision is treated as highly relevant but “not the last word.”

3.2 Legal Reasoning

(a) Family law is not an exception to civil restraint—child welfare may support restraint

Collins J endorsed the proposition that family proceedings can be weaponised as “lawfare.” In that setting, litigation restraint is not merely about preventing repetitive filings; it may serve substantive family-law values by limiting harassment, instability, and the psychological toll of perpetual conflict. Importantly, he accepted that the best interests of the child can “well justify” making an Isaac Wunder order.

(b) Constitutional access to courts is preserved by a leave-based “filter”

The judgment frames the constitutional analysis as one of proportionality and structure. The constitutional right of access (per Brandley v Deane) is not a licence to litigate abusively (per Riordan v Ireland (No 4)). A restraint order does not bar access outright; it requires prior permission—a mechanism already described in Irish authority as a proportionate filter (Fitzsimons v Bank of Scotland Plc).

(c) The jurisdiction is inherent/implied: a necessary incident of courts as constitutional institutions

Collins J located the power to grant Isaac Wunder orders within the courts’ inherent powers “as a necessary incident” of their constitutional function, drawing on Kirwan v Connors and the English articulation in Bhamjee v Forsdick (Practice Note). This inherent-power framing matters because it explains (i) why the power exists absent statute, and (ii) why it can be exercised to protect both private parties and the public interest in finality and limited judicial resources.

(d) Public interest and “own motion” orders

Beyond protecting a target of abusive litigation, the judgment stresses systemic harms: diversion of court resources and impairment of the administration of justice. This supports the proposition (from Houston v Doyle) that such orders may be made by the court of its own motion, because the court’s responsibility is not only inter partes but institutional.

(e) Compatibility with Articles 6 and 8 ECHR

Collins J agreed that the existence/exercise of the jurisdiction is not, in principle, contrary to Articles 6 and/or 8 ECHR. The logic mirrors the constitutional analysis: leave-to-proceed mechanisms regulate abusive conduct while maintaining a route to adjudication, rather than extinguishing access.

(f) Supervisory reach: High Court (and appellate courts) may restrain proceedings in the Circuit/District Courts

Collins J supported the High Court’s power to regulate commencement/maintenance of proceedings in inferior courts, aligning with the reasoning in Ebert v Venvil that supervision is not limited to judicial review and can include injunctions affecting litigants. He reinforced this by reference to established High Court powers relating to contempt and injunctive relief/stays connected to lower court proceedings.

(g) The contested point: whether Circuit/District Courts can issue “nationwide” restraint orders as an inherent power

Collins J departed from colleagues by confining the Circuit/District Courts’ inherent/implied power to orders within their own geographic units. He grounded this in: (i) the nature of the power as implied rather than statutory; (ii) its constitutional sensitivity (impact on access to courts); and (iii) the statutory/constitutional architecture of localised jurisdiction, underpinned by Article 34.3.4°.

He rejected reliance on sections 22(1)(a), 22(6), and 22(7) of the Courts (Supplemental Provisions) Act 1961 as the source of a broad restraint jurisdiction for the Circuit Court, viewing those provisions as concerned with substantive/ancillary jurisdiction in a sense not apt to capture Isaac Wunder orders. He added a structural argument: if section 22 were the source, the District Court would lack an equivalent power absent parallel statutory text.

While acknowledging possible circumvention by filings in another District/Circuit, he considered that jurisdictional rules and case-by-case control by the seized court could address abuse. If broader “nationwide” powers are desirable, he stated they should be conferred “by law” and crafted with practical machinery (recording, access, procedures for seeking permission), while respecting Article 34.3.4° and informed by Permanent TSB v Langan.

3.3 Impact

Family law practice: The decision (as endorsed by Collins J) confirms that civil restraint tools can apply in family litigation, where repeated applications can be uniquely harmful. The explicit linkage to child welfare provides a principled family-law justification beyond cost control.
Procedural reform pressure: Collins J’s remarks strongly signal a need for structured rules—definitions, thresholds, duration, record-keeping, data protection issues, permission procedures, and appeal rights—given rising frequency of such orders.
Order design and proportionality: By comparing the Irish order (broad and indefinite) with the English taxonomy (limited/extended/general restraint orders and maximum durations), the judgment invites future Irish courts to focus more explicitly on tailoring and time limits.
Lower-court jurisdiction debates: Collins J’s local-only model for Circuit/District inherent powers, and his insistence that nationwide versions require legislation/rules consistent with Article 34.3.4°, is likely to shape future litigation and reform proposals—particularly where litigants seek orders with State-wide reach.

4. Complex Concepts Simplified

“Isaac Wunder order”: A court order that does not permanently bar a person from suing, but requires them to obtain leave (permission) before starting specified new proceedings—designed to prevent abusive, repetitive, or vexatious litigation.
Inherent/implied powers: Powers not written in legislation but treated as necessary for a court to function as a “court of justice” (e.g., controlling its own process and preventing abuse).
“Proportionate filtering mechanism”: A legal control that screens out abusive filings while leaving a pathway for genuine claims through a permission step.
“Own motion”: The court acts on its own initiative (not solely because a party applied), reflecting the public-interest dimension of controlling abuse of process.
Judicial review vs. injunction: Judicial review challenges legality of lower-court decisions; injunctions can restrain a litigant’s conduct (e.g., commencing or continuing proceedings), even where supervision is the underlying rationale.
Quia timet: Relief sought to prevent a threatened harm before it happens; referenced in the discussion of Clune v Director of Public Prosecutions.
Article 34.3.4°: A constitutional constraint requiring that Circuit Court jurisdiction be “limited,” relevant to whether broad new powers can be conferred on that court.

5. Conclusion

M v M affirms (as Collins J expressly endorses) that Isaac Wunder orders can be deployed in family law and may be justified by the best interests of the child, while remaining compatible with constitutional access to courts and, in principle, Articles 6 and 8 ECHR. The judgment emphasises that the right of access does not include a right to litigate abusively, and that leave-based restraint can operate as a proportionate filter protecting both private parties and the public interest in finality and scarce judicial resources.

The decision is also reform-facing: Collins J’s call for structured rules (and, if needed, legislation) underscores that a growing jurisdiction should be made more predictable, transparent, and proportionate. Finally, his analysis highlights an emerging constitutional fault line—how far lower courts may go, on inherent power alone, in making restraint orders with potentially nationwide effect—an issue likely to recur in future Irish litigation and court-rules development.