Res Judicata is a long established rule in law that you cannot take the same situation, arising from the same set of facts, and litigate it more than once.  The principle was established in a case from 1834 known as Henderson v. Henderson.

In modern times, an order from the court, restricting the ability of a repeat litigant from issuing further proceedings, without obtaining prior leave from the court, is known as an ‘Isaac Wunder Order’. It was named after a serial litigant from the 60’s who took various groundless claims against the Irish Hospitals Trust, for sweepstake winnings. The granting of such an order is not one taken lightly be the courts, as it restricts an individual’s fundamental right of access to the courts, and is only granted in special circumstances.

The issue of whether to strike out the set of proceedings before the Court and to grant an ‘Isaac Wunder Order’, preventing the Plaintiff from issuing any further proceedings against the Defendant, was considered by Justice Birmingham on 27th January 2014 in the case of Michael Quinn and Brigid Quinn v. Ken Fennell [2014] IEHC 20.


The matter before the Court saw the Defendant Receiver seeking orders to have the present proceedings struck out as an abuse of process or on the basis that the issues which the Plaintiffs were looking to litigate were now Res Judicata. The Receiver also sought an Isaac Wunder Order restraining the Plaintiff from issuing any further proceedings against him, without obtaining leave from the Court.

Also listed before the Court, at the same time, was a motion brought by the Defendant seeking direction as to the mode of sale of certain lands and premises, and a motion brought by the Plaintiffs which sought to seek direction in relation to certain matters in regarding s.316 of the Companies Act 1963.

It was agreed between the Receiver and the Plaintiffs that the s.316 motion could be dismissed but the Plaintiffs then changed their minds and sought to restore their claim under S.316. Justice Birmingham was not persuaded by the Plaintiffs change of heart and advised that his decision in the case would only consider the strike out motion and the application for an Isaac Wunder Order.

The background to the application was that the Plaintiffs were husband and wife, and were directors and shareholders of a Company which operated a petrol station and grocery store in County Monaghan, since 1988.  In 2006 the Company planned to develop a larger supermarket and to rebuild the petrol station. They borrowed €6.5 million from AIB (‘the Bank’), an amount which later increased, in order to carry out the developments. Default occurred in relation to the loan repayments and the Bank appointed the Defendant as Receiver.

Initially the Receiver operated the supermarket with the involvement of the Plaintiffs, however, after a few months he dispensed with their services and a protest followed, including a sit-in protest which led to the Receiver applying to Court for an injunction to remove the Plaintiffs.

The Plaintiffs subsequently issued proceedings against the Receiver arguing that part of the petrol station and supermarket were located on pieces of ground that were owned by them as individuals and not owned by the Company.

In those proceedings the Receiver sought directions from the Court that the Plaintiffs were trespassing on the lands and the Judge held on behalf of the Receiver and advised that although two plots of ground which part of the petrol station and supermarket were located on had remained in the legal ownership of the Plaintiffs that the Company enjoyed an exclusive license to occupy the lands since the Company had redeveloped the premises on the lands with the permission of the Plaintiffs.

The case which was being made by the Receiver before Justice Birmingham was that the issues sought to be litigated in this set of present proceedings were identical to matters which were raised in previous proceedings and that the reliefs which were being sought by the Plaintiff, were reliefs which could not be granted having regard to the terms of the order granted in the previous proceedings.


Justice Birmingham advised that a careful examination of the present pleadings and the previous pleadings and orders granted was necessary.  After examining the pleadings Birmingham J. came to the conclusion that the present proceedings were to a large extent simply a repeat of the previous proceedings.

He held that there is a public interest in ensuring that litigation comes to an end and that the same matters are not re-litigated when they have been already decided.  He further added that the current proceedings initiated by the Plaintiffs which clearly seek to re-litigate what has already been decided have to be regarded as vexatious and as amounting to an abuse of process.  Birmingham J noted that the avenue which does remain open to the Plaintiffs is through an appeal to the Supreme Court against the orders made in the previous proceedings.

The Court heard that the Plaintiffs were unhappy with the way that the previous proceedings were conducted before the trial judge and in particular that the Plaintiffs were critical of the solicitors that acted on their behalf.  The Court noted that the Plaintiffs have issued proceedings against their former solicitors.  The Court held that their dissatisfaction with their solicitors does not provide justification for seeking to litigate the matter afresh and that the Plaintiffs remedy, if they have one, was to be found in the Supreme Court.

With regards to the Plaintiffs challenge to the person acting as Receiver the Court noted that this challenge was Res Judicata and cannot be raised again in the current proceedings and commented that it would be unreasonable for the Receiver to have to face multiple proceedings raising the same issue.

With regard to the granting of the Isaac Wunder order, Birmingham J. stressed that this was not an Order which should be made lightly due to the significant restriction on the person’s right of access to the courts which occurs if the Order is made.

He expressed the view that the fact that the Plaintiffs, having lodged the present proceedings seeking to litigate what has already been litigated, would not of itself be sufficient to justify making the Isaac Wunder Order however he categorised the present proceedings as vexatious and an abuse of process and this categorisation led him to believe that the granting of an Isaac Wunder Order was necessary.

Justice Birmingham concluded that the pattern of multiple proceedings litigating the same and overlapping issues was so clear cut that the making of an Isaac Wunder Order was justified.

However, the Plaintiffs were advised that if they gave an undertaking that they would not issue further proceedings and that the existing dispute will be pursued through the proceedings already in being, including an appeal which had been lodged to the Supreme Court.

Justice Birmingham advised that he would accept the undertaking and that it would obviate the necessity for making the Isaac Wunder Order which the Plaintiffs might reasonably fee would reflect poorly on them.  However the Court advised that if satisfactory undertakings from the Plaintiffs were not forthcoming he would make the order prohibiting the Plaintiffs from issuing any further proceedings against the Receiver without the leave of the President of the High Court.

As appears from the above case the Courts are reluctant to restrict a person’s right to access to the courts and impose an Isaac Wunder Order unless there is clear evidence that the new proceedings are not only a repeat of previous claims but are also considered to be vexatious and an abuse of process.

 Breda Sheahan is a trainee solicitor in the Commercial Department of FitzGerald Solicitors.  FitzGerald Solicitors is located at 6 Lapps Quay, Cork.


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