Man’s 17-year litigation is ‘instrument of oppression’ against ex-wife, judge says

Court of Appeal dismisses man’s appeal over being refused leave to bring judicial review proceedings

The judge noted the underlying family law proceedings now span almost two decades. Photograph: Bryan O’Brien/The Irish Times

The judge noted the underlying family law proceedings now span almost two decades. Photograph: Bryan O’Brien/The Irish Times

 

A man’s “relentless” pursuit of litigation over some 17 years against his ex wife is not motivated by a genuine desire to vindicate his rights “but rather to weaponise litigation as an instrument of oppression against her”, a Court of Appeal judge has said.

Mr Justice Seamus Noonan made the comment on Wednesday in the three judge court’s judgment dismissing the man’s appeal over being refused leave to bring judicial review proceedings over a legal costs decision.

The judge noted the underlying family law proceedings now span almost two decades. A January 2019 affidavit from the woman’s solicitor indicated, at that stage, the proceedings had continued for 17 years and taken upwards of 135 days in court.

That “remarkable statistic” has been since exceeded, the judge said.

He noted, as an adjunct to earlier judicial separation and divorce proceedings in the Circuit Court, the woman sought an order in 2014 for partition and sale of lands subject of a property adjustment order in the family proceedings. The lands comprised parcels in two folios and the Circuit Court in April 2015 made an order for their sale, with the proceeds to be equally divided between the parties.

The man lost a High Court appeal on January 26th 2016 over that order. It then transpired one of the parcels of land was sold by him some years earlier, a fact not previously disclosed to the court or the woman, the judge said.

Three days later, the High Court granted an injunction restraining him dissipating the proceeds of that sale. In January 2017, the High Court made an order for distribution of the proceeds, directing €75,000 be retained in court from the man’s share pending the taxation of the woman’s costs in the litigation over the land partition.

The taxation was carried out over two days in June 2018 by Niall Rooney, County Registrar of Waterford, sitting as County Registrar of Cork, sitting as a taxing master. The man represented himself and the woman was represented by a solicitor.

Mr Justice Noonan said the man raised no complaints during the hearing about the taxation process and had not appealed the certificates of taxation.

Instead, in October 2018, he sought leave to bring judicial review proceedings, the third such application in this litigation, aimed at quashing the certificates and to have another county registrar hear the matter. He argued, inter alia, Mr Rooney had not followed the taxation procedure set out in order 99 of the Rules of the Supreme Courts.

The High Court directed the leave application be heard on notice to the woman and ultimately, in August 2019, refused leave. Reasons for its refusal were set out in a written judgment of January 2020, including findings there was no evidence to suggest the taxation was not conducted entirely fairly and the man’s fundamental difficulty was confusion on his part between the High Court and Circuit Court rules on taxation.

The man appealed and this was dismissed on Wednesday by the Court of Appeal.

Mr Justice Noonan said he agreed entirely with the High Court and was satisfied there was no basis for the man’s contention the county registrar was obliged, in conducting the taxation, to adopt the Order 99 procedure.

There was nothing in this case that approaches an arguable ground there was bias, actual or objective, of the part of the county registrar or trial judge, he also held.

Given the “extraordinary” history of this litigation, it is “impossible to avoid the conclusion the man’s relentless pursuit of litigation against the woman is not motivated by a genuine desire to vindicate his rights but rather to weaponise litigation as an instrument of oppression against her”, he said.

“In my view, it should not be permitted to continue.” He would therefore dismiss this appeal.