About this case:

• Citation:
  [2023] IEHC 36
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Brian O'Moore

Delivering judgment in the case, Mr Justice Brian O’Moore held that it was undesirable to jail Mr Burke again and that the sequestration of Mr Burke’s assets was unlikely to persuade him to comply with the court order. Accordingly, the court held that a daily fine was the correct response to Mr Burke’s behaviour.

Background

The background of the matter has been well-publicised. On the application of Wilson’s Hospital School, Mr Burke had been jailed in September 2022 for refusing to comply with an interlocutory order which required him to stay away from the school while disciplinary proceedings were progressing. 

In December 2022, Mr Burke was released from jail by Mr Justice O’Moore. The ILN report of that judgment can be found here. At that time, Mr Burke was held to be “exploiting his imprisonment for his own ends.”

Following his release from prison, Mr Burke began attending the school again. Mr Burke entered the school premises on 5 January 2023 and refused to leave despite the demands of the principal and chairman of the board of management. Due this this refusal, the principal set up a workspace in the corridor which Mr Burke attended to monitor his interaction with students.

The school principal outlined that there was a genuine concern about the interactions and disruption which could occur due to Mr Burke’s attendance. Students were told to use an alternative route within the school to avoid Mr Burke. 

On 6 January 2023, where he was informed by letter that if he did not comply with the court order, an application would be made to the High Court to compel compliance.

Ultimately, Mr Burke did not comply with the order and the school brought an application seeking the attachment and committal of Mr Burke, the sequestration of his assets or any other order which the court deemed fit. As part of written submissions, the school relied on Meath County Council v Hendy [2020] IEHC 142 and Irish Shell Ltd v Ballylynch Motors Ltd (Supreme Court, Lynch J) which outlined that a fine may be imposed on a contemnor by a court.

Mr Burke described the possibility of a fine as “an abomination” in the current economic climate of a housing crisis and inflation. Mr Burke maintained that the fine would be imposed for his expression of his religious beliefs. Mr Burke also described how he had “lavished the school with a wealth of talent and honour and goodwill for four years.”

Mr Burke reiterated his position that the court order restraining him from attending the school was unconstitutional an “void ab initio.” As such, Mr Burke indicated that it would be improper for the court to grant the application of the school.

High Court

Mr Justice O’Moore began his assessment by noting that the school’s notice of motion did not specifically seek the imposition of a fine against Mr Burke. Citing IBRC v. Quinn [2012] IESC 51, the court held that “a meticulous observation of procedural justice” was required. The court outlined that Mr Burke declined make submissions on whether he was taking a procedural objection to the court considering a fine.

The court was satisfied that Mr Burke was fully aware of the content of the relevant order and that he was in breach of it. There was also no doubt that Mr Burke was aware before the hearing of the motion that the school was requesting the court to consider fining him. In the circumstances, the option of fining Mr Burke was open to the court, it was held.

Dealing with Mr Burke’s objection to the application, the court outlined that the one High Court judge could not overrule another High Court judge. It was solely a matter for the Court of Appeal to determine whether the previous orders made by High Court judges against Mr Burke were valid and appropriate. As such, the previous order made that Mr Burke was to avoid trespassing on the school remained effective and had to be obeyed.

It was simply constitutionally impermissible for the court to set aside the High Court order, Mr Justice O’Moore said. It was also noted that Mr Burke attempted to differentiate the case law relied on by the school on the basis that those cases dealt with illegal dumping rather than religious beliefs. The court held that the essence of these decisions was how to deal with the continued defiance of court orders. Further, the court emphasised that complying with the court order “in no way compromises Mr Burke’s religious beliefs.”

The court held that Mr Burke’s attendance at the school in defiance of the court order was conscious and wilful. The specific elements of the court order which were breached were those prohibiting Mr. Burke from attending at the school premises for the duration of his paid administrative leave and prohibiting him from trespassing on the property of the school. Mr Burke also breached a provision requiring him to comply with the directions of the board of management.

The contention by Mr Burke that he attended the school “to work” was “quite surreal” as Mr Burke could not have truly expected that he would be permitted to act as a teacher in January 2023.

In assessing the appropriate response, the court held that imprisonment was an unattractive prospect given the findings in the court’s decision from December 2022. Further, the sequestration of Mr Burke’s assets did not seem likely to persuade him to comply with the court order.

As such, the court held that a fine was appropriate. In IBRC v. Quinn, it was held that it was possible for a court to impose a daily fine for contempt of court. In setting the level of the fine, the court noted that contrition was not a factor in the case as the defiance had continued for an extremely lengthy period. It was also noted that Mr Burke was unapologetic and claimed to have done nothing wrong. 

Mr Burke refused to provide any information of his assets, although the school outlined that his estimated salary was €48,000. Taking all relevant factors into account, the court set the fine as €700 per day until he purged his contempt.

Conclusion

The court held that the nearly €5,000 per week fine “should persuade Mr Burke to end his utterly pointless attendance at a school which does not want him on its property.” The fine could also be increased, the court said.

The Board of Management of Wilson’s Hospital School v. Burke [2023] IEHC 36