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Restraining ‘McKenzie Friends’ following abuse of process

By: Ian Fitzharris BL

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In Mr Justice Haughton’ recent lengthy judgment in Allied Irish Banks PLC v McQuaid [2018] IEHC 516 orders were granted permanently restraining a person from acting as a ‘McKenzie Friend’ or indeed from advising, participating in or assisting litigation in any court in the State. Also granted was an Isaac Wunder order restraining him from issuing further proceedings against the bank without the prior permission of the High Court. Over a number of years, he was found to have engaged in a consistent pattern of delay, contempt and indeed threatening behaviour towards parties to the litigation and the Court in the exercise of its own case management procedures and processes. He was found on multiple occasions to be in criminal contempt of court for amongst other actions, having made threatening and abusive statements on affidavit concerning his opponents.

The Court noted that an injunction restraining a ‘McKenzie Friend’ does not have any impact on that person’s right to earn a livelihood or pursue a profession, given that it did not give rise to any entitlement to remuneration. The Court was not reticent in making the somewhat draconian order in circumstances where it carefully distinguished the application of the ‘McKenzie Friend’ process to that of the making of an Isaac Wunder order, the latter of which the Court, it was held, must be careful to ensure that persons the subject of such orders retain their constitutional right of access to the courts.

In Gaynor v. Court Service of Ireland [2018] IEHC 502 Mr Justice Humphries made a temporary Isaac Wunder order against a lay litigant appellant for having engaged ‘in a clear pattern of abuse of the court process’.The appellant had applied to set aside the Court’s own prior order refusing him leave to seek judicial review of the Courts Service’s failure to set aside a bankruptcy summons. This application itself had already been ruled on and refused in 2016. The Court ruled it ‘a complete abuse of process’ to apply again for the same relief and stopped short of making a permanent Isaac Wunder order because of certain health difficulties expressed by the appellant which gave birth to a desire to prepare further legal submissions in the case.

Recently the Court of Appeal in Coyle v Gray [2018] IECA 294 noted that, unlike Counsel, lay litigants were under no professional obligations to the court such as the duty never to deceive the court, the overriding duty to ensure the proper and efficient administration of justice, or the duty to act independently and free from the influence of their clients. The comments were made in the context of a number of appeals brought by a lay litigant against certain procedural and case management rulings of the High Court.

It would appear the Superior Courts are thus actively managing and protecting the operation of their processes from sustained and tailored abuse. This is something both practitioners and lay litigants alike must applaud in the modern context of sometimes dense and cumbersome case management procedures.

What is abundantly clear is that the Courts’ patience in attending to the particular needs of lay litigants in modern litigation is not unending and that pre-meditated actions or activities which undermine the proper functioning of the courts system will not go unpunished.

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