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2026 IEHC 306

THE HIGH COURT Record No.: 2018/6722P [2026] IEHC 306 Between: FILBECK LIMITED Plaintiff -andBRENDAN KIRWAN and FRANCES KIRWAN Defendants Judgment of Mr Justice Jordan delivered on the 18th day of May,

  2. The Plaintiff is a judgment creditor of the First-Named Defendant having obtained judgment against him on 15 November 2012 (“the Plaintiff’s Judgment”) in proceedings bearing record number and title “Record No. 2011/4998S, Between Filbeck Limited, Plaintiff and Brendan Kirwan, Defendant” (“the 2011 Proceedings”).
  3. The Plaintiff in these proceedings is seeking to set aside a conveyance between the first named defendant and the second named defendant (his wife). As a result of the conveyance [or Transfer] the Second-Named Defendant was registered as sole owner of the property described in Folio 7709F in the Register of Freeholders, Co. Wexford (“the Property”) and the First-Named Defendant was removed as a joint owner.
  4. The litigation history is protracted and illustrates in a rather stark way how litigants such as the first-named defendant can delay and frustrate the delivery of justice by abusing the court process - or by doing what many might describe as gaming the system. The first named defendant has delayed and frustrated the plaintiff getting this case heard and determined and it is clear that the first named defendant will endeavour to continue to do so if allowed. The first named defendant’s conduct has clear consequences in this litigation – but it does not end there as his wasting 1 of court time deprives other litigants of court time for their cases. It is worthwhile setting out a summary chronology of relevant events; 10 June 1982 Brendan Kirwan and Frances Kirwan were registered as joint owners of the Glenville Road, Coolcotts, Wexford property. 1 February 2011 20 The Glenville Road property was registered in Frances Kirwan’s sole name. December 2011 Proceedings bearing record number 2011/4998S were commenced by summary summons (the 2011 Proceedings). 8 August 2012 Brendan Kirwan instituted summary proceedings against Eamonn Buttle bearing record number 2012/2995S (the 2012 Buttle Proceedings). 15 Filbeck secured judgment in default of appearance against November2012 Brendan Kirwan in the sum of €1,056,936.00 4 Brendan Kirwan issued a motion seeking to set aside the December 2012 judgment in the 2011 proceedings. 30 May 2013 Proceedings bearing record number 2013/5514P were commenced (the 2013 Combined Proceedings). 23 July 2018 Plenary Summons issued in these proceedings 23 The High Court dismissed the 2013 proceedings for 2019 October inordinate and inexcusable delay. The High Court re-entered the motion to dismiss the 2012 proceedings and struck out those proceedings. The High Court granted Filbeck leave to execute the judgment obtained in the 2011 proceedings. 2 The High Court re-entered and refused Brendan Kirwan’s motion to set aside the Plaintiff’s Judgment. 26 October The Court of Appeal delivered judgment dismissing the 2022 Brendan Kirwan’s appeals. 16 March 2023 The Supreme Court granted leave to appeal. 1 March, 2024 Statement of Claim was delivered in these proceedings. 30 May 2025 The Supreme Court judgments were delivered upholding the Court of Appeal decision. Kirwan v Connors [2025] IESC 21 contains all of the detail one might require to understand the litigation between the parties. The judgment of Hogan J from paragraph 22 on is comprehensive in dealing with the litigation history. 1 July 2025 Defendants’ Notice for Particulars. 16 July 2025 Plaintiff’s Replies to Particulars. 18 July 2025 Defence of Brendan Kirwan delivered. 18 July 2025 Defence of Frances Kirwan delivered. 14 The Supreme Court rejected the application to rescind or October2025 vary its decision. 12 Ferriter J delivered an ex tempore ruling in the 2011 2026 February proceedings refusing applications inter alia to set aside the Plaintiff’s Judgment. The transcript of the Ex tempore ruling has been considered by the court. Much if not all of what is said in that ruling can be repeated in relation to the Motions before this court. It is as if Mr. Kirwan and his son refuse to hear or accept that they cannot rehash matters which are not new and which he has lost the right to litigate. 3
  5. The Plaintiff’s action is brought pursuant to s. 74 of the Land and Conveyancing Law Reform Act 2009 - on the basis that the conveyance was an attempt to prevent the Plaintiff from enforcing its Judgment.
  6. The Motions brought by the First-Named Defendant (“the 2019 Motion” and “the 2025 Motion” - collectively “the Motions”) speak for themselves and need not be repeated verbatim here. As Motions they are not in the usual format and they are quite argumentative in nature. In a nutshell, the Motions seek to have the plaintiff’s claim struck out for a variety of reasons - and they also seek other relief. In so far is it is possible to distil what is sought they can be summarized as claims for the following relief: (a) An Order Striking out the proceedings on the merits / a challenge to the underlying judgment by reason of; - Corruption, fraud and misconduct; - Non-compliance with the Rules of the Superior Courts 1986 (“RSC”); - Failure to deliver a Statement of Claim and delay; - Improper service; (b) An Order providing for the Cross-examination of deponents; (c) An Order Compelling Replies to Particulars; (d) An Order allowing for Inspection and provision of documents; (e) An Order directing the Provision of the First-Named Defendant’s solicitor’s file; (f) Isaac Wunder relief; (g) Expenses and costs.
  7. The first named defendant in his affidavit evidence before the court [and in particular those sworn by him, by his wife Frances and by his son Barry] and in his written submissions seeks to agitate issues already decided and/or no longer open to be litigated by him. The first named defendant fails to engage with the 4 issues in these proceedings in any sensible way. The court has nonetheless considered the first named defendant’s evidence and submissions. They are not persuasive in so far as the relief claimed is concerned. They are not persuasive in any respect.
  8. The Plaintiffs affidavit evidence [and in particular the affidavit of Eamonn Buttle for the plaintiff sworn on 8/10/25] sets out in a cogent and credible way the factual position. The Plaintiff’s claim.
  9. In AIB v. Burke [2024] IEHC 755, [26] Cregan J. noted that “… the necessary proofs which a plaintiff must satisfy a Court of in respect of section 74

(3)[of the Act of 2009] [are] as follows: (
  1. i)there must be a conveyance or disposition of property; (
  2. ii)the conveyance must be made with the intention of defrauding creditors of the grantors; and (iii) the person challenging the conveyance must have been prejudiced by it.” 9. As to the first necessary proof, it is not disputed that there was a conveyance of the Property between the Defendants. 10. As for the second necessary proof, in AIB v. Burke [2018] IEHC 767, [23] Twomey J. noted that “[t]he case-law on this area and, in particular, the seminal case of Re Moroney
(1887)21 LR IR. 27 establishes that fraudulent intent in this regard is ‘an intent to delay, hinder or defraud creditors’ and such intent can be assumed from ‘the necessary and probable consequences of the act done’”. The necessary and probable consequence of the conveyance between the Defendants was that the First-Named Defendant’s interest in the Property would become unavailable to the Plaintiff when it came to enforcing the Plaintiff’s Judgment (notwithstanding that the conveyance preceded the judgment being 5 obtained). The consequence was to put an asset of the First-Named Defendant beyond the reach of his creditors. This the Plaintiff says establishes the necessary fraudulent intent for the purposes of s. 74 of the Act of
  2. As for the third required proof, the Plaintiff says it is a judgment creditor of the First-Named Defendant and its judgment remains unsatisfied. The Plaintiff says it is therefore inevitably prejudiced by the First-Named Defendant’s alienation of his valuable interest in the Property.
  3. On the face of it the Plaintiff has solid arguments that the proofs are met. Striking out the proceedings on the merits / challenge to underlying judgment.
  4. It appears from the Notices of Motion and the Grounding Affidavits that the First-Named Defendant seeks to strike out these proceedings on the basis that there is no underlying debt owed to the Plaintiff and/or on the basis that the Plaintiff’s Judgment for that debt ought to be set aside. This argument fails for two reasons Firstly, the First-Named Defendant cannot satisfy the test applicable to such applications. Secondly, in the circumstances of this case, the making of these arguments by the First-Named Defendant is itself an abuse of process. The applicable test.
  5. Order 19, rule 28 RSC provides as follows:
(1)The Court may, on an application by motion on notice, strike out any claim or part of a claim which: (
  1. i)discloses no reasonable cause of action, or (
  2. ii)amounts to an abuse of the process of the Court, or (iii) is bound to fail, or (
  3. iv)has no reasonable chance of succeeding. 6
(2)…
(3)The Court may, in considering an application under sub-rule
(1)or
(2), have regard to the pleadings and, if appropriate, to evidence in any affidavit filed in support of, or in opposition to, the application. 15. The Court also has an inherent jurisdiction to strike out proceedings. The parameters of this Jurisdiction were summarised by the Court of Appeal in Scotchstone Capital Fund Ltd v. Ireland [2022] IECA 23, [290]. The position is; (
  1. a)An application for a strike out of a plaintiff's claim on the basis of the inherent jurisdiction is not a substitute for summary disposal of a case; (
  2. b)The jurisdiction exists, not to prevent hardship to a defendant from defending a case, but to prevent against an abuse of process of the court by the plaintiff, e.g. causing a manifest injustice to the defendant in being asked to defend a case which is bound to fail; (
  3. c)The burden of proof is on the defendant; (
  4. d)There is a degree of overlap between bound to fail jurisprudence and cases which are held to be frivolous and vexatious. However, the latter are cases which may have a reasonable chance of success but would confer no tangible benefit on a plaintiff or are taken for collateral or improper motives or where a plaintiff is seeking to avail of scarce resources of the courts to hear a claim which has no prospect of success; (
  5. e)The standard of proof is on the defendant/respondent to show that the claim is bound to fail or is frivolous or vexatious; (
  6. f)Bound to fail may be described inter alia, as devoid of merit or a claim that clearly cannot succeed; (
  7. g)Frivolous and vexatious must be understood in their legal context as claims which are, inter alia, futile, misconceived, hopeless; (
  8. h)The threshold for the plaintiff to successfully defend such a motion is not a prima facie case but a stateable case; 7 (
  9. i)It is a jurisdiction to be used sparingly, in clear cut cases and where there is no basis in law or in fact for the case to succeed; (
  10. j)The court must accept the facts as pleaded by the plaintiff in considering whether an Order pursuant to O.19, r. 28 may be made but in the exercise of its inherent jurisdiction the court can to some extent look at and assess the factual basis of the plaintiff’s claim; (
  11. k)Where the legal or documentary issues are clear cut it may be safe for a court to reach a conclusion on a motion to dismiss; (
  12. l)Even where a plaintiff makes a large number of points, each clearly unstateable, it may be still safe to dismiss; and (
  13. m)In some cases, even if the factual disputes are clear cut or may be easily resolved, the legal issues or questions concerning the proper interpretation of documentation may be so complex that they are unsuited to resolution within the confines of a motion to dismiss. 16. On applications such as this, the jurisdiction to be exercised will generally be that conferred by Order 19, rule 28 RSC, but the fundamental basis of the approach taken under that jurisdiction, and that taken pursuant to the Court’s inherent jurisdiction to strike out a claim, is the same: Meehan v. Ireland [2025] IECA 59, [54]-[55]. 17. The Plaintiff correctly submits that the First-Named Defendant cannot discharge the burden of proof in these Motions. Taking the Plaintiff’s case at its height, there is no basis for a finding that the Plaintiff’s claim is devoid of merit, or that it clearly cannot succeed. The Plaintiff’s case is not just stateable - it is on the evidence a strong case. 18. The Plaintiff submits that the above is sufficient to dispose of the First-Named Defendant’s applications to dismiss these proceedings. However, given the unusual circumstances of the case, the Plaintiff also submits that the raising of these arguments is itself an abuse of process. 8 Abuse of process. 19. On 12 February 2026, Ferriter J. delivered a ruling in the 2011 Proceedings in respect of “a series of motions [brought by the First-Named Defendant] which, in essence, call upon the Court to set aside” the Plaintiff’s Judgment (p. 3 of the transcript of the ruling). The motions also sought to have “various people to be directed to appear for cross-examination and various documents directed to be produced” (p. 15). 20. The grounds on which those applications were brought are set out in pp. 3-4 of the ruling - and in all material respects they include the grounds advanced by the First-Named Defendant in these Motions. 21. The Plaintiff relies on the ruling of Ferriter J. in full in defending the Motions. The Plaintiff submits that it is particularly relevant to note that Ferriter J. held as follows: (
  14. a)The First-Named Defendant had already issued a motion seeking to have the Plaintiff’s Judgment set aside. This motion was refused by Meenan J. on 23 October 2019. This refusal was never appealed (p. 12, lines 1-2). (
  15. b)The First-Named Defendant has to accept that his right to litigate all and any aspect of the matters raised in the 2011 Proceedings, and in the 2012 Buttle Proceedings, and in the 2013 Combined Proceedings, including the Plaintiff’s Judgment (hereinafter, “the Concluded Proceedings”), has been irreparably and definitively lost through his own prolonged and inexcusable inaction, whether he seeks to litigate those matters by way of pleadings, affidavit, submissions or otherwise (p. 22, line 18ff.). (
  16. c)The First-Named Defendant has to bring an end to these abusive applications before the Court (p. 23, line 24). 22. The Plaintiff submits that this ruling is in accordance with the established principles. In Mullaney v. Ireland [2023] IECA 195 the Court of Appeal noted that it is impermissible to bring proceedings for the purpose of challenging final orders made in earlier proceedings. Similarly, in Burns v. Byrne [2025] IECA 9 154 the Court of Appeal held that the appellants in that case were also engaged in an abuse of process. The Plaintiff submits that the Court of Appeal did so in terms applicable equally to these Motions : “63. … in the [earlier] proceedings the second appellant attempted to stop the train from leaving the station: in these proceedings, the appellants are attempting to prevent that same train from reaching its final destination. The underlying challenge in both proceedings is to all intents and purposes the same. … 68. … I am satisfied that for reasons similar to those stated by the trial judge, these proceedings constitute an abuse of process and, in principle, ought to be struck out.” 23. In the cases mentioned above the abuse of process lay in the bringing of proceedings. However, this court is satisfied that the bringing of these Motions to strike out the Plaintiff’s claim on the same grounds as were litigated in the Concluded Proceedings is a clear attempt to circumvent previous final orders and as such is an abuse of process. 24. The Plaintiff correctly submits that it makes no difference that the challenges to the Plaintiff’s Judgment the subject-matter of the Concluded Proceedings were dismissed on grounds of his “contumelious delay” in prosecuting them (per Hogan J. in Kirwan v. Connors [2025] IESC 21, [200]) rather than following a determination on the merits. In Davies v Carillion Energy Services Ltd [2018] 1 W.L.R. 1734, [52] Morris J. summarised the relevant authorities as follows:“First, the line of cases [cited to the Court] are authority for the following:
(1)Where a first action has been struck out as itself being an abuse of process, a second action covering the same subject matter will be struck out as an abuse of process, unless there is special reason … 10
(2)In this context abuse of process in the first action comprises: intentional and contumelious conduct; or want of prosecution; or wholesale disregard of rules of court …” 25. This view was endorsed by the Court of Appeal in Revenue and Customs Commissioners v. Kishore [2022] 2 All E.R. 90, [27](
  1. ii): “Where a civil claim has been struck out as an abuse of process on account of intentional and contumelious conduct, want of prosecution or wholesale disregard of rules of Court or, perhaps, struck out by reason of other ‘inexcusable’ procedural failure on the part of the claimant, a second claim covering the same subject matter will be struck out unless there is special reason not to do so …” 26. This court agrees with Ferriter J. in so far as he held that the First-Named Defendant’s right to litigate all and any aspect of the matters raised in the Concluded Proceedings, including the Plaintiff’s Judgment, has been irreparably and definitively lost through his own prolonged and inexcusable action, whether he seeks to litigate those matters by way of pleadings, affidavit, submissions or otherwise. This includes the bringing of these Motions. 27. While it is not necessary for the Plaintiff to establish that the Motions are an abuse of process in order to have them dismissed the Plaintiff is correct to articulate the basis on which it echoes the exhortation of Ferriter J. that the FirstNamed Defendant “[has] to bring an end to these abusive applications before the Court”. Corruption, fraud and misconduct 28. As evident from the ruling of Ferriter J. in the 2011 Proceedings, there are two “fundamental problems” with the First-Named Defendant’s persistent invocation of fraud. 29. First, it is not supported by the facts (pp. 17-18). 30. Secondly, these are matters which the First-Named Defendant has “definitively lost the right to litigate”, for the reasons mentioned above. 11 31. The First-Named Defendant has persisted in making entirely baseless allegations of wrongdoing against other parties, and their lawyers, in the various sets of proceedings in which he has participated over many years. This conduct is repeated in the Motions. 32. The Plaintiff correctly references observations of Heslin J. in Mars v. Walshe [2025] IEHC 661, [85], [86] as they are apt also in this case : “85. Why baseless allegations of fraud should not have been made by the defendant in this case (and should not be made in any case) is illustrated by the Court of Appeal’s recent decision in Howley v. McClean & Anor. [2025] IECA 77, wherein Mr. Justice O’Moore stated:‘…the effect on persons accused of fraud can be significant. An allegation of fraud, even if not actually proven at trial, can nonetheless be significantly damaging to the reputation of the person accused of deceitful or fraudulent behaviour. Particularly from the point of view of someone engaged in business or in a profession, an allegation formally made in court proceedings that such an individual has acted fraudulently is of the greatest seriousness’. (para. 8) ‘…the making of an allegation of fraud is so toxic that, even if struck out at an early stage, it is quite likely to result in lingering but palpable damage to the reputation of the person or institution accused of fraud.’ (para. 29).” 86. I also want to make clear that the undoubted right of the defendant to oppose this claim without instructing legal professionals does not come with an entitlement to make baseless allegations of wrongdoing by others. Nor does his choice not to retain legal professionals excuse the making of assertions which are as toxic and potentially damaging as they are devoid of a basis in evidence. Why? Because the defendant did not need a solicitor or counsel to understand what is true and what is not. His conduct in this respect must be deprecated.” 12 Non-compliance with the Rules of the Superior Courts 1986 33. This appears to be a complaint in relation to service, and the delivery of the Statement of Claim, both of which are addressed by the plaintiff as follows ; Failure to deliver a Statement of Claim and delay 34. As explained in the Plaintiff’s Replying Affidavit, the progress of these proceedings was inhibited by the First-Named Defendant’s challenges to the Plaintiff’s Judgment, culminating in the Supreme Court judgments delivered in May 2025. 35. The court agrees that it was appropriate for the Plaintiff to decide not to progress these proceedings, including by postponing delivery of a Statement of Claim, until such time as the Plaintiff could reasonably anticipate that the First-Named Defendant’s challenges to the Plaintiff’s Judgment in the 2011 Proceedings were coming to an end. Cross-examination of deponents 36. The First-Named Defendant’s Affidavit grounding the 2025 Motion, p. 18, invokes Order 38, rule 3 RSC in this regard. However, this provision only applies to proceedings commenced by special summons and these are plenary proceedings. Subject to this observation, the plaintiff also correctly submits that two principles identified by Dignam J. in Beades v. KBC [2023] IEHC 127, [13], [23] are relevant to the First-Named Defendant’s applications for these reliefs. Firstly, motions to strike out or dismiss proceedings are normally heard on affidavit. Secondly, cross-examination of deponents will normally only be permitted where there is a material conflict of fact which requires to be determined, though the Court has a discretion to permit cross-examination on construction, interpretation or conclusions from “facts in a narrow sense” if that is necessary 13 for the purpose of determining the application. None of these considerations arise in this case. The plaintiff adds to this the observation made by the authors of Delaney and McGrath on Civil Procedure (5th edn, 2023), [21-118], in reliance on the judgment of Dignam J. in Beades v. KBC, that “[g]iven that a court is required, on an application to strike out proceedings on the basis that they have no reasonable prospect of success, to take a plaintiff’s case at its height and assume that the plaintiff can prove the facts alleged, there is very limited, if any, scope for cross-examination”. Furthermore, the plaintiff submits that “in order to give rise to a right of crossexamination any conflict of evidence must be in relation to a material or relevant issue. If the conflict relates to an unsustainable, speculative or irrelevant issue, cross-examination will manifestly not be necessary”: Permanent TSB Plc v. Donohoe [2018] IEHC 355, [60]. Having regard to the nature of the plaintiff’s claim and the litigation history the court considers that the matters in respect of which the First-Named Defendant indicates an intention to cross-examine various deponents fall into the category of irrelevancy. 37. This claim for this relief by the first named defendant is misconceived. Compelling Replies to Particulars 38. The Plaintiff relies on Quinn v. PwC [2021] 2 I.R. 44, [20] where the Supreme Court distilled a number of long-standing principles from the authorities concerning a party’s obligation to provide proper particulars of a claim:(
  2. a)The issues between the parties should be adequately defined and the parties should know in broad outline what is going to be said at the trial of the action. (
  3. b)The defendant is entitled to be told of the facts as the plaintiff alleges them to be - and it is not a ground for refusing particulars that the defendant may know the true facts. (
  4. c)In complex cases, more detailed particulars may properly be required. 14 (
  5. d)The requesting party is entitled to know the range of evidence (rather than any particular item of evidence) with which he or she will have to deal with at the trial. (
  6. e)The procedures requiring an exchange of witness statements may reduce the risk of a party being taken by surprise at a trial, but that does not mean that less is required by way of particulars. (
  7. f)One important function of particulars is to limit the range of discovery, which can be burdensome and expensive for the parties. 39. The Plaintiff is correct in stating that the pleaded claim in these proceedings is sufficient to allow the First-Named Defendant to know in broad outline the case which he has to meet. 40. It is also the position that the First-Named Defendant has failed to identify any failure on the Plaintiff’s part to provide adequate particulars, whether in the correspondence, on Affidavit or in written submissions. 41. This claim for this relief by the first named defendant is misconceived. Inspection and provision of documents 42. The Plaintiff is correct in stating that the First-Named Defendant has not identified any stateable basis on which the inspection of documents might be ordered. Insofar as can be made out from the Grounding Affidavits, the documents in question concern the underlying debt on foot of which the Plaintiff’s Judgment was granted. However, for the reasons set out above, the right to litigate any objection to that judgement has been lost. 43. This claim for this relief by the first named defendant is misconceived. Improper service 44. The First-Named Defendant entered an Appearance to these proceedings on 11 November 2019 (albeit that the Appearance is purportedly dated 1 August 2019), without having brought any application to have service of the proceedings on him set aside. 15 45. The Plaintiff correctly points out that the First-Named Defendant cannot now seek to impugn service of these proceedings - for the reasons set out by the Court of Appeal in Lawless v. Beacon Hospital [2019] IECA 256, [13]:“It is clear from the rules that if a defendant claims that the service upon him of proceedings is in some way invalid, that defendant must before entering any appearance bring an application by way of notice of motion under O. 12, r. 26 RSC to have service set aside. If such a defendant enters an appearance, the effect thereof is to waive any objection to the manner in which service has been effected, and to cure any such defect …. Entry of appearance by a defendant is an acknowledgement that the summons has been served and acts as a notification to the court that this is the case. That effect cannot be suspended or qualified in any way by entering an appearance under protest. There is no provision in the rules enabling that to be done.” 46. The Plaintiff also says that service of these proceedings was deemed good by the Court on 24 June 2019. 47. Furthermore, the first named defendant has sought a raft of procedural orders and relief from this court. This is invoking the courts jurisdiction in these proceedings. He has also appeared before the court and argued these motions (through his son which it should be said raises other issues). 48. There is no substance in the first named defendant’s argument concerning service. 49. This ground for relief claimed by the first named defendant is misconceived. Provision of the First-Named Defendant’s solicitor’s file 50. The First-Named Defendant’s former solicitors are not party to these proceedings and there is no proper basis for such an Order to be made against them in these proceedings on this application. There is also no basis for seeking such an Order against the Plaintiff. Isaac Wunder relief 51. The irony of this claim for relief by the first named defendant is striking. 52. The jurisdiction to make an Isaac Wunder order was described in Riordan v. Ireland (No. 5) [2001] 4 I.R. 463, 465 as follows:16 “Where the court is satisfied that a person has habitually or persistently instituted vexatious or frivolous civil proceedings it may make an order restraining the institution of further proceedings against parties to those earlier proceedings without prior leave of the court. In assessment of the question whether the proceedings are vexatious, the court is entitled to look at the whole history of the matter and it is not confined to a consideration as to whether the pleadings disclose a cause of action. The court is entitled in the assessment of whether proceedings are vexatious to consider whether they have been brought without any reasonable ground. The court has to determine whether the proceedings being brought are being brought without any reasonable ground or have been brought habitually and persistently without reasonable ground.” 53. There is simply no basis for a finding that the Plaintiff’s efforts to enforce its Judgment against the First-Named Defendant can be described in such terms. 54. This area of law is comprehensively covered in the recent Supreme Court decision in M v M [2026] IESC 2. At para 134 of her Judgment in that case Dunne J stated ; “……. It is clear that the courts have a wide variety of procedures that can be followed and orders that can be made to prevent and stop litigation that is vexatious or an abuse of the process of the courts. Such litigation obviously has an adverse effect on the opposing party, but just as importantly, it has an adverse effect on the administration of justice by wasting valuable court time on unmeritorious litigation. The remedies available to the courts include the striking out of vexatious pleadings, the striking out of abusive proceedings, and, of course, the making of Isaac Wunder orders where there is repeated unmeritorious litigation by a party to proceedings.” 55. This claim for this relief by the first named defendant is misconceived. 56. Litigation restriction orders [ previously known as Isaac Wunder orders ] are also the subject of the recent High Court Practice Direction HC 135 which came into operation on 3 February 2026. The latter Practice Direction is pertinent to this litigation in so far as the conduct of the first-named defendant is concerned 17 and it may require to be availed of by the Plaintiff if the first named defendant does not desist from issuing abusive applications/proceedings. 57. The court must also address the manner in which Mr. Barry Kirwan has seemingly inserted himself as some sort of shadow defendant in these proceedings. His participation started with permission being granted by Meenan J in Kirwan v Connors and ors. [2013 No 5514 P] that he be allowed act as McKenzie Friend to his father [para. 13 and 14]. Then Barry Kirwan began to describe himself as “Guardian and Next Friend” of his father. This is commented on at paragraph 7 of the Court of Appeal Judgment in Kirwan v Connors [2023] IECA 120 where it was pointed out that no such status had ever been granted to him and that there was no evidence of any legal incapacity on the part of Brendan Kirwan. 58. Nolan J in Kirwan v O’Leary and ors. [2025] IEHC 448 at paragraphs 17 and 18 addressed this issue in circumstances where Barry Kirwan was then describing himself as “son, next of kin, guardian and next friend”. He pointed out that there was no legal basis for these assertions. 59. In an affidavit of Brendan Kirwan of October 2025 in these proceedings there appears after his name in the title – “(disabled, defending through his son, and Next Friend Barry Kirwan as per Order 15 rule 20 & 21 Rules of the Superior Courts)”. Paragraph 1 of the affidavit seeks to legitimize this Title amendment. 60. There is good support for the view that Barry Kirwan now is or wants to be some sort of shadow defendant in the proceedings and to actively litigate in these proceedings as such. The above descriptions of his “role” lack legitimacy in any legal sense and may be viewed as an aspect of the abuse of process which the first named defendant is guilty of - and in which conduct Barry Kirwan is at the very least a willing participant. Ultimately, this issue is likely to be a focus of attention at the hearing when the findings on relevant issues will be determined. It may well transpire that the court will decide – depending on its findings – that it can and should in the interests of justice make orders against Barry Kirwan including appropriate costs orders. 18 Expenses and costs 61. The plaintiff correctly submits that these applications are entirely without merit and there is no basis for the First-Named Defendant to be awarded any expenses or costs incurred by him in this litigation. Conclusion 62. These Motions are utterly devoid of substance or merit. They are an abuse of the process of the court and are dismissed. The court will list the matter on Tuesday 19 May 2026 at 10.30 and will deal then with costs, directions concerning setting down for trial and related matters - and any other matters arising. 19

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