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M v M (Approved)
Factual and Procedural Background
This is a Supreme Court appeal in proceedings between an Appellant and a Respondent, with the Attorney General as a notice party. The judgment summarised here is a concurring judgment of Judge Murray, who agreed generally with the lead judgment of Judge Dunne and adopted her account of the facts and the parties’ arguments (which were not reproduced in this text).
Judge Murray addressed two issues of general importance arising in the appeal concerning so-called “Isaac Wunder” orders (orders restricting a person’s ability to institute proceedings without prior permission): (i) whether such orders made in the District Court or Circuit Court are subject to geographical limits, and (ii) the legal basis on which the High Court may make orders restricting a person from issuing proceedings in the District Court or Circuit Court without permission.
Legal Issues Presented
- Whether an Isaac Wunder order made by the District Court or Circuit Court (as an ancillary, in-personam restriction on a vexatious litigant) is geographically limited to a particular district or circuit.
- What legal basis supports the High Court’s power to restrain a person from instituting proceedings in the District Court or Circuit Court without prior permission.
- Whether the High Court has (or should be understood to have) a general “protective” jurisdiction over courts of local and limited jurisdiction, as distinct from a supervisory jurisdiction.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Kirwan v. Connors [2025] IESC 21 | Distinction between a court’s procedural powers (controlling its own processes) and a broader jurisdiction affecting litigation in other courts. | Used to frame the conceptual difference between “procedural control” Isaac Wunder orders and broader orders affecting proceedings beyond the court seized of the case. |
| Riordan v. Ireland (No. 4) [2001] 3 IR 365 | Implied power of courts to control their own proceedings and prevent abuse, as necessary to the administration of justice. | Supports the proposition that every court has inherent/implied authority to restrain abuse of its own processes, including conditioning future litigation by vexatious litigants. |
| Grepe v. Loam (1887) 37 Ch D 168 | Longstanding recognition of orders conditioning vexatious litigants’ ability to initiate proceedings. | Cited to show the historical pedigree of such restraints and that they were part of the judicial function predating the Constitution. |
| SP v. UG [2016] IEHC 693 | Explanation that Isaac Wunder orders derive from implied power to supervise and control court procedures to avoid oppression/vexatious applications. | Quoted as an accurate description of the source and purpose of Isaac Wunder orders in the “own-process” category. |
| The State (Boyle) v. Neylon [1986] IR 551 | There is only one District Court and one Circuit Court; judges act as judges of those courts (not merely of a local subdivision). | Supports the conclusion that the power to restrain abuse of process is a power of the court as an institution, not confined to a local sitting. |
| Hosie v. Lawless [1927] IR 464 | The 1924 courts scheme decentralised jurisdiction; it did not impose local limits on the effect of orders once jurisdiction is properly invoked. | Used to distinguish between “local/limited jurisdiction” and the potentially wider reach of in personam orders made within that jurisdiction. |
| Grimes v. Owners of SS Bangor Bay [1948] IR 350 | Constitutional requirement that Circuit Court jurisdiction be local and limited; invalidity of conferring an effectively unlimited general jurisdiction. | Explained as concerning the scope of statutory jurisdiction (not the geographic reach of in personam orders once jurisdiction exists). |
| Permanent TSB plc v. Langan [2017] IESC 71, [2018] 1 IR 375 | Meaning of “limited” jurisdiction; limitations may be by category of cases and need not be solely monetary; requirement that the Circuit Court’s jurisdiction be genuinely limited. | Relied on to reinforce that “limited” is a real constitutional requirement, while rejecting the idea that it implies geographical limits on ancillary in personam orders. |
| [2016] IECA 229 | Prior appellate view (in the Langan litigation) referenced as part of the debate about Grimes/Langan. | Mentioned for context; not treated as governing authority in this judgment. |
| The People (DPP) v. MS [2003] 1 IR 606 | Some causes of action may be too broad ever to be “limited” in the constitutional sense. | Cited to caution that certain types of jurisdiction may not be constitutionally “limited,” though this does not control the reach of in personam orders. |
| Sligo Corporation v. Gilbride [1929] IR 351 | Interpretation of ancillary powers provisions; Circuit Court has “all powers” ancillary to its jurisdiction, subject to statutory limits. | Supports the conclusion that an Isaac Wunder order made as an adjunct to a properly seized case is within the Circuit Court’s ancillary powers. |
| Lett v. Lett [1906] 1 IR 618 | High Court power to restrain institution of proceedings in a foreign jurisdiction. | Used by analogy to support that injunctive relief can restrain litigation outside the High Court itself and is not inherently limited to the High Court forum. |
| Joseph Murphy Structural Engineers Ltd. v. Manitowac (UK) Ltd. (Unreported, Supreme Court, 30 July 1985) | Inherent power to restrain foreign proceedings and/or stay proceedings due to parallel litigation; reliance on pre-independence inherent jurisdiction principles. | Relied upon as authority and historical support for the High Court’s inherent jurisdiction to prevent vexation by abusive litigation “anywhere.” |
| In Re Connolly Brothers Ltd, Wood v. Connolly Brothers Ltd. [1911] 1 Ch 731 | High Court can restrain a party from litigating in another court where the enjoined proceedings are vexatious or oppressive; applies to inferior and co-ordinate courts. | Treated as expressing the essential principle underlying injunctions restraining litigation in other courts, supporting High Court power extending to lower courts. |
| McHenry v. Lewis (1882) 22 Ch D 397 | “General jurisdiction” to prevent a defendant being improperly vexed by legal procedure. | Used to reinforce the rationale for restraining vexatious or oppressive litigation through in personam orders. |
| AG v. O'Kelly [1928] IR 308 | Analogy on derivation/continuity of inherent powers (contempt) post-independence. | Used by analogy to support the proposition that pre-existing inherent jurisdictions were not extinguished by constitutional change. |
| Wunder v. Hospitals Trust (1940) Ltd. (Unreported, 11 April 1967) | Historical reference point for the use of such restraining orders in Ireland. | Mentioned to suggest the power was likely familiar and understood, and not necessarily first exercised in that decision. |
| Shannon v. Moran (Unreported, Supreme Court, 9 December 2004) | Example suggesting an order conditioning “no proceedings” may have been intended to include Circuit Court proceedings; permission potentially from President of the High Court. | Cited to support that leave need not be confined to Presidents of the District/Circuit Court and may, in an appropriate case, be vested in the President of the High Court. |
| The State (Hunt) v. Circuit Judge of the Midland Circuit [1934] IR 196 | The High Court’s authority over inferior courts is “superintending and corrective” (supervisory), not a general protective power. | Relied upon to characterise the High Court’s relationship with inferior courts as supervisory (legality control) rather than protective governance. |
| The State (Abenglen Properties) v. Corporation of Dublin [1984] IR 381 | Origin and parameters of “superintendence and control” (supervisory jurisdiction). | Used to reinforce the limits of supervisory jurisdiction and to resist a broad “protective” jurisdiction thesis. |
| Clune v. Director of Public Prosecutions [1981] ILRM 17 | Courts of limited jurisdiction are not subject to direction/control by superior courts; District judge controls proceedings in their own court subject to jurisdictional limits. | Used to emphasise procedural autonomy of inferior courts, subject only to lawful supervisory review, undermining an expansive protective jurisdiction concept. |
| Kelly v. National University of Ireland [2017] IECA 161, [2017] 3 IR 237 | Repetition/endorsement of the Clune passage in later authority. | Cited to show continuing reliance on the autonomy/supervisory-jurisdiction distinction. |
| R. v. Davies [1906] 1 KB 32 | English “protective” jurisdiction: superior court as guardian of public justice/custos morum, correcting not only inferior courts but also third parties interfering with them. | Discussed to explain and reject (for Irish constitutional reasons) importing that English protective jurisdiction model into Irish law. |
| Quinn and White v. Stoke and Quirke [1931] IR 558 | Post-1922 courts are new courts under constitutional authority, not a mere continuation of the old regime. | Used to argue against transferring an English-style custos morum/protective jurisdiction conception into the constitutional courts of the State. |
| Attorney General v. O'Ryan and Boyd [1946] IR 70 | Referenced for counsel argument on protective jurisdiction and for recognition of contempt/attachment powers relating to inferior courts. | Used to illustrate historical discussion of protective jurisdiction and to support the proposition that constructive contempt offences were long recognised. |
| Attorney General v. Connolly [1947] IR 213 | Case suggesting a generally drawn “protective” power. | Judge Murray stated the High Court was, in his view, in error in suggesting it had such a generally drawn protective jurisdiction. |
| The State (DPP) v. Walsh and Conneely [1981] IR 412 | Rejection (by majority) of an expansive “protection of justice” rationale for summary trial of contempt contrary to Article 38.5. | Cited as supporting caution against using a broad “protection” concept to expand jurisdiction beyond constitutional text. |
| Attorney General v. Cooke [1924] 58 ILTR 157 | Assumption post-1924 that High Court could entertain attachment for publications interfering with District Court prosecutions. | Used as part of the historical account showing long recognition of constructive contempt/attachment powers. |
| Connor v. O'Brien [1925] 2 IR 24 | The 1924 courts scheme comprised “four separate but co-related units.” | Used to argue that the system’s separation is undermined by a broad proposition that the High Court may generally “protect” lower courts. |
| RD Cox Ltd. v. Owners of the MV Fritz Raabe (Unreported, Supreme Court, 1 August 1974) | Article 34.3.1° is “investitive” of jurisdiction, not “creative” of jurisdiction; it declares amplitude to encompass justiciable matters. | Used to reject the notion that Article 34.3.1° authorises invention of new jurisdictions (including a broad protective jurisdiction), rather than recognising existing ones. |
Court's Reasoning and Analysis
Judge Murray distinguished between two overlapping types of “Isaac Wunder” restraint: (1) an order made in the course of (or at the conclusion of) proceedings restraining a party—typically a claimant—from further proceedings against the opposing party without leave, justified as a court’s control over its own procedures and protection of litigants before it; and (2) broader orders that restrict a named person from litigating in any court or against persons not before the court, which may amount to asserting a wider jurisdiction rather than merely controlling the court’s own process.
On geographical scope, the judgment reasoned that the District Court and Circuit Court, though “local and limited” in jurisdiction, are each single courts whose jurisdiction is exercised locally by statute. Once a court is properly seized of a case within its statutory limits, there is no constitutional or statutory requirement that an in personam order made in that case must be local in effect. An Isaac Wunder order in the first category is directed to the litigant, not to a particular sitting or venue, and may therefore restrain the litigant from instituting covered proceedings in that court anywhere in the State.
The judgment emphasised the difference between (i) constitutional requirements that the jurisdiction conferred on the District/Circuit Courts be limited and local, and (ii) the territorial effect of orders those courts may make once jurisdiction has been properly invoked. It explained why Grimes and Langan were about jurisdictional limits (and constitutionality/construction of statutory conferrals), not about imposing geographical limits on ancillary in personam orders.
On the Circuit Court’s power to make such orders when ancillary to proceedings properly before it, Judge Murray relied on the statutory conferral of “all powers … ancillary to any jurisdiction exercisable” by the Circuit Court (s. 22(7) of the Courts (Supplemental Provisions) Act 1961), reinforced by earlier interpretation of similar language.
On the High Court’s power to restrain future abusive proceedings in the District or Circuit Court, the judgment grounded that power in established principles: instituting proceedings that constitute an abuse of process may sound in tort and justify injunctive relief; and the High Court has long had inherent jurisdiction to restrain vexatious or oppressive litigation, including by restraining proceedings in other courts (including foreign courts). The judgment treated the restraining order as operating in personam against the litigant (to protect defendants from being vexed), rather than as a mechanism for directing inferior courts’ processes.
Finally, the judgment rejected the idea of a broad, general High Court “protective” jurisdiction over inferior courts (as distinct from its supervisory jurisdiction), warning against importing English concepts associated with the High Court as custos morum. It characterised the High Court’s role regarding inferior courts as supervisory—“superintending and corrective”—focused on legality and correction of error, and stressed the procedural autonomy of courts of local and limited jurisdiction subject to lawful oversight.
Holding and Implications
CONCURRED: Judge Murray agreed generally with the lead judgment and provided additional reasons on the scope and legal basis of Isaac Wunder orders.
The judgment clarifies that (i) where the District Court or Circuit Court is properly seized of proceedings, an ancillary in personam Isaac Wunder order restraining a vexatious litigant is not confined in effect to a particular district or circuit, and (ii) the High Court’s authority to restrain a litigant from instituting abusive proceedings in lower courts is grounded in established injunctive/inherent jurisdiction principles aimed at preventing vexation of defendants, not in a broad “protective” jurisdiction over inferior courts. The judgment did not purport to create new precedent beyond these explanations and characterisations of existing powers and constitutional structure.
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