Barrington & Anor -v-Attorney General & Ors (Approved)

Factual and Procedural Background

The Plaintiffs ("the Barringtons") sought an interlocutory injunction to prevent the sixth Defendant ("MRCS") and another Defendant from taking possession of a business premises in Galway. An interim injunction was initially granted ex parte by one High Court judge (Sanfey J.) without evidence from the Defendants, but with conditions requiring the Plaintiffs to file a supplemental affidavit containing facts and an undertaking as to damages. The Plaintiffs subsequently filed an affidavit failing to comply with these requirements. The interim injunction was later vacated by another High Court judge (Nolan J.) after considering evidence that MRCS was the registered owner of the property. Dissatisfied, the Plaintiffs applied to a different High Court judge to set aside Nolan J.'s interlocutory order, an application which is unprecedented in this jurisdiction.

The Plaintiffs were assisted throughout by an unqualified litigation adviser, Mr. Macken, who is not a legal practitioner. The Court noted that the Plaintiffs made several fundamental errors in their litigation strategy and procedure, including serving motions on parties not involved in the injunction application and failing to provide factual evidence supporting their claims.

Legal Issues Presented

1. Whether one High Court judge can set aside an interlocutory order made by another sitting High Court judge absent exceptional circumstances.
2. The legal consequences and implications of litigants being assisted by unqualified litigation advisers in High Court proceedings.
3. The extent to which finality in litigation and administration of justice is preserved in interlocutory applications.
4. Whether the Plaintiffs’ application to set aside the interlocutory order was properly constituted and supported by facts and law.
5. The appropriate procedural and substantive response to unqualified litigation advisers operating in the courts.

Arguments of the Parties

Plaintiffs' Arguments

• The Plaintiffs contended that Nolan J. failed to comply with the Constitution, High Court and Supreme Court caselaw, Rules of the Superior Courts, and breached fair procedures in making his interlocutory order.
• They relied on a Land Registry folio indicating prior ownership of the property and a solicitor’s letter which they claimed was threatening, justifying their injunction application.
• The Plaintiffs sought to have the interlocutory order set aside by another High Court judge instead of appealing Nolan J.'s decision to the Court of Appeal.

Defendants' Arguments

• Defendants submitted that the Plaintiffs’ application was unsustainable and amounted to an improper attempt to appeal one High Court judge’s decision before another.
• They emphasized that the Plaintiffs were being advised by an unqualified litigation adviser, Mr. Macken, who was driving the nonsensical claims.
• Defendants argued that the Plaintiffs made fundamental procedural errors, including serving motions on irrelevant parties, causing unnecessary costs and wasting court resources.
• It was submitted that the Land Registry folio conclusively established MRCS as the registered owner, and absent evidence of fraud or mistake, the interlocutory injunction was rightly refused.
• Defendants urged that finality in litigation must be respected and that interlocutory orders should only be set aside in rare and exceptional circumstances.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Start Mortgages Limited v Vincent Kavanagh and Madeleine Kavanagh [2017] IEHC 433	Criminal offence for unqualified persons giving litigation advice; dangers of unqualified advisers.	Reinforced the Court’s concern about unqualified litigation advisers and the associated legal risks.
KBC Bank Ireland Ltd v Flynn [2017] IEHC 79	Harm caused by unqualified advisers ("hob lawyers").	Supported the characterization of unqualified advisers as harmful to litigants and the justice system.
Bank of Ireland Mortgage Bank v Martin [2017] IEHC 707	Detrimental impact of unqualified advisers on litigants.	Confirmed that advice from unqualified advisers is often wrong and harmful to litigants’ interests.
O'Hara v Ireland & Ors [2023] IEHC 268	Systemic pressure on courts caused by unqualified advisers; harm to litigants and court users.	Highlighted the misuse of constitutional and treaty arguments by unqualified advisers and the resulting delays.
Twomey v Mallow Town Council (High Court, 16 July 2003)	Abuse of process by litigants assisted by unqualified advisers; courts do not require McKenzie friends.	Used to emphasize longstanding judicial disapproval of unqualified advisers masquerading as McKenzie friends.
R v Leicester City Justices, Ex parte Barrow [1991] 2 QB 260	Criticism of unqualified litigation assistants falsely described as McKenzie friends.	Referenced to distinguish true McKenzie friends from unqualified litigation advisers.
Cunniffe v Cunniffe and Anor [2023] IECA 113	Acceptance of true McKenzie friends; condemnation of unqualified litigation advisers.	Clarified that courts permit true McKenzie friends but disapprove unqualified advisers holding themselves out as legal consultants.
Fox v McDonald & Ors [2017] IECA 189	Unqualified advisers lack training, insurance, and accountability.	Supported the Court’s concerns about the absence of professional regulation for unqualified advisers.
McInerney Homes (in examination) & ors & Companies Acts [2011] IEHC 25	Finality of court rulings; setting aside judgments only in very limited circumstances such as fraud.	Applied to emphasize the rarity of setting aside final orders and the importance of finality in litigation.
Bellville Holdings Limited v The Revenue Commissioners [1994] 1 ILRM 29	Finality of proceedings fundamental to certainty in law.	Supported the principle that final orders should not be lightly breached to maintain legal certainty.
Board of Management of Wilson's Hospital School v Enoch Burke [2024] IEHC 453	Reopening final orders only in very extreme circumstances; refusal to set aside where no appeal lodged.	Used to reinforce the Court’s reluctance to set aside orders absent exceptional grounds and proper appeal.
Reardon v Government of Ireland [2009] 3 IR 745	Consideration of expense to taxpayers caused by litigation.	Invoked to underscore the Court’s duty to consider unnecessary costs imposed on the public purse.
Minister for Justice & Equality v Sciuka [2021] IESC 80	Judicial independence; different judges may reach different decisions.	Illustrated that litigants are entitled to a decision, not necessarily the ‘right’ or ‘just’ decision.
Ossory Road Enterprise Park Limited v Rogers & Ors [2025] IECA 34	Abuse of process; potential requirement of security for costs for litigants abusing court process.	Suggested as a mechanism to prevent litigants from inflicting multiple appeals and costs on opponents.

Court's Reasoning and Analysis

The Court began by expressing strong disapproval of unqualified litigation advisers ("quack lawyers") who provide pseudo-legal advice to vulnerable lay litigants, causing harm both to those litigants and to the administration of justice through wasted court resources and unnecessary costs. The Court noted that it is a criminal offence for unqualified persons to give litigation advice, yet enforcement is lacking.

The Court distinguished between true McKenzie Friends, who provide non-legal assistance, and unqualified litigation advisers who improperly give legal advice or draft documents, the latter being unlawful and harmful.

Turning to the specific matter, the Court emphasized the importance of finality in litigation. It held that one High Court judge cannot set aside an interlocutory order made by another sitting High Court judge except in the rarest of circumstances akin to those justifying setting aside final orders (e.g., fraud or changed circumstances). The Plaintiffs’ application was unprecedented and improperly constituted as a de facto appeal rather than a set aside based on changed circumstances.

The Court found that the Plaintiffs made fundamental procedural and substantive errors, including serving irrelevant parties, failing to provide factual evidence, and refusing to take up judicial suggestions to adjourn or appeal properly. The Court accepted uncontroverted evidence and submissions that the Plaintiffs were being assisted by an unqualified litigation adviser who was driving their flawed claims.

The Court further reasoned that litigants are entitled to a reasoned decision after a fair hearing but are not entitled to the 'right' or 'just' decision, as different judges may legitimately reach different conclusions. The Plaintiffs’ sense of injustice did not constitute grounds to set aside the interlocutory order.

Finally, the Court considered the implications of permitting the Plaintiffs to pursue further appeals, noting that this would create a systemic abuse of court process by effectively allowing two appeals, with attendant costs and resource burdens on defendants and the taxpayer. The Court suggested that security for costs might be required in future to prevent such abuse.

Holding and Implications

The Court REFUSED the Plaintiffs' application to set aside the interlocutory order made by Nolan J. The decision reaffirmed the principle that one High Court judge will not set aside an interlocutory order of another except in very rare and exceptional circumstances, which were absent here.

The Court underscored the dangers and systemic harms caused by unqualified litigation advisers operating in the courts, advising that lay litigants are better off without such assistance. It highlighted the importance of finality in litigation and the need for litigants to follow proper appellate procedures rather than attempting to circumvent them.

The ruling directly impacts the parties by upholding Nolan J.'s order and signals that litigants should not pursue set aside applications as a substitute for appeals. No new precedent altering the law was established; rather, the Court applied established principles to the facts.

The Court also indicated a willingness to consider requiring security for costs in cases where litigants abuse court processes by effectively pursuing multiple appeals, to protect defendants and taxpayers from unnecessary costs.