About this case:

• Citation:
  [2024] IEHC 453
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Mark Sanfey

Delivering judgment for the High Court, Mr Justice Mark Sanfey opined that “it is a valid order of this Court, and Mr Burke will comply with it, or face the consequences. It is not open to Mr Burke to conclude unilaterally that the order of the court breaches his constitutional rights and is thus ‘void ab initio’, such that he does not have to comply with it. He does not get to pick and choose which order of the court directed to him that he will obey.”

Background

Mr Burke was suspended on paid administrative leave from the plaintiff school on 22 August 2022 arising from his refusal to address a student by a new name and a “they” pronoun.

A disciplinary hearing in respect of Mr Burke was heard on 19 January 2023, and he was dismissed with effect from 21 April 2021. Mr Burke’s appeal was unsuccessful. Despite injunctive relief being granted restraining Mr Burke from attending the school, he continued to attend and was committed to prison at various times for contempt of court.

The school sought declarations that the decision to place Mr Burke on administrative leave was lawful, and sought a perpetual injunction retraining him from trespassing on school premises and damages for trespass. Mr Burke counterclaimed inter alia for declarations that the disciplinary process interfered with his constitutional rights, and sought an injunction preventing the continuation of his suspension.

The trial was heard over four days by Mr Justice Alex Owens. In his judgment dated 19 May 2023, Mr Justice Owens noted that Mr Burke had been removed from court on the first day of the trial due to disorderly conduct and had been excluded from further participation unless he provided an undertaking with the Court’s rulings.

The said undertaking was not forthcoming, and in circumstances where Mr Burke’s counterclaim was not advanced by him, it was dismissed by order dated 17 July 2023 which also declared his suspension lawful, granted an injunction against him and awarded damages of €15,000 to the school.

Mr Burke failed to comply with the said order, and was thereafter committed to Mountjoy prison until he purged his contempt. Despite periodic review, Mr Burke refused to give an undertaking to abide by the court’s orders.

On 14 June 2024, Mr Burke presented to the High Court a document entitled “Application to set aside judgment of Judge Alexander Owens” which critiqued the court’s judgment as violating his constitutional rights to inter alia freedom of conscience and practice of religion. The matter was adjourned to allow the school to make legal submissions on the issue of whether a High Court judge had jurisdiction to set aside a decision of another High Court judge.

The High Court

The hearing of that preliminary issue took place on 28 June 2024 before Mr Justice Sanfey. Mr Burke contended that Mr Justice Owens did not conduct any examination of whether or not the “demand” or “instruction” from the principal to address a pupil as “they” was lawful or legitimate.

The school suggested that the application was unsustainable, devoid of merit and bound to fail, referring to Bellville Holdings Limited v the Revenue Commissioners [1994] 1 ILRM 29 as authority for the proposition that “…only in special or unusual circumstances that an amendment of an order passed and perfected, where the orders of a final nature, should be made by the court”.

The school also emphasised the judgment of Mr Justice Frank Clarke (as he then was) in Re McInerney Homes Limited [2011] IEHC 25, wherein he stated: “Where proceedings have come to their natural conclusion, whether in a court of first instance or, in the event of an appeal, as a result of a determination of the court which has the final appellate role in the circumstances of the case, then it can, at least in litigation involving the rights and obligations of parties, be said that the ruling of the court is a final ruling which can only be displaced in very limited circumstances, such as where it can be demonstrated that the judgment of the court had been procured by fraud or the like.”

The school further highlighted that while Mr Burke had raised constitutional issues, he had failed to advance those points before Mr Justice Owens despite being given ample opportunities to participate in the proceedings. Mr Burke responded, asserting that nonetheless, Mr Justice Owens was obliged to take into account his constitutional rights and had failed to do so.

Mr Justice Sanfey noted that he had listened to the Digital Audio Recording (DAR) of the hearing, finding that the sole issue for his determination was Mr Burke’s application to set aside the judgment of Mr Justice Owens.

The judge agreed with Mr Burke’s contention that he had invoked his constitutional rights in the pleadings leading up to the trial before Mr Justice Owens, and observed that the school had stood over its actions.

The court considered paragraph 16 of Mr Justice Owen’s judgment which made it clear that as Mr Burke’s counterclaim was not being advanced, the claims made therein would be dismissed, observing Mr Burke’s contention that the court was obliged nonetheless to investigate whether there had been a breach of his constitutional rights even though he would not attend court to make that claim himself.

Addressing Mr Burke’s argument that the circumstances before the court came within the principle that an order could be reviewed in “truly exceptional” circumstances, the judge stated:

Emphasising that the importance of finality in litigation requires that the re-opening of final decisions be possible in only very extreme circumstances, Mr Justice Sanfey noted that Mr Burke had failed to avail of his right of appeal and had no plausible explanation as to why he did not avail of that right.

The judge took the view that Mr Burke’s application fell so far short of the “truly exceptional” circumstances, that the school’s characterisation of the application as an abuse of process was justified and the suggestion that Mr Justice Owens should have decided other than as he did was “absurd and unstateable in law”.

Mr Justice Sanfey determined that the order of Mr Justice Owens was valid, and that Mr Burke could not “pick and choose which order of the court directed to him that he will obey”.

The court continued: “He has been imprisoned because he chooses not to obey the order of the court — the very same court which he now expects to come to his aid and uphold his allegations of breach of his constitutional rights, notwithstanding his refusal to contest the original trial or to appeal the judgment of the court.”

Conclusion

Accordingly, the High Court dismissed Mr Burke’s application.

Board of Management of Wilson’s Hospital School v Enoch Burke [2024] IEHC 453