About this case:

• Citation:
  [2023] IEHC 123
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Brian O'Moore

Delivering a written ruling on further directions, Mr Justice Brian O’Moore held that, notwithstanding the non-compliance with directions, a trial date would be fixed for 28 March 2023. The school was given further time to provide written legal submissions.

Background

Last week, Mr Burke’s appeal against certain interlocutory orders of the High Court was dismissed by the Court of Appeal. However, the full trial of the action had not taken place and the High Court had issued directions on 14 February 2023 regarding the substantive hearing.

Revised directions were made which required the school to provide witness statements by 22 February and Mr Burke to provide witness statements by 28 February. The school was also to provide written legal submissions by 3 March, with Mr Burke providing his submissions by 10 March.

The school had previously outlined that it did not require discovery from Mr Burke, while Mr Burke maintained that “very few” documents would be sought in discovery. The court outlined that if witness statements and discovery were finalised by 1 March, a trial date could be set by the end of the month. Neither party objected to this course of action.

Both sides were to contact the Chancery Registrar to inform the court of progress in the directions. While the witness statements had been provided, Mr Burke complained that the school had not provided discovery by 1 March. On 3 March, the Registrar wrote to the parties and outlined the court’s view that it was “unsatisfactory” that discovery had not been finalised. It was noted that, on Mr Burke’s account, the school’s solicitors had not replied to his request for discovery.

The school also failed to deliver its written legal submissions on 3 March in compliance with court directions. Mr Burke contacted the solicitors on that date (copying the Registrar) but there did not appear to be a reply.

A further email was sent on behalf of the court on 8 March asking two questions: first, whether discovery had been agreed. Second, whether written submissions had been delivered. If the answers were negative, the court sought reasons from the parties.

The school’s solicitors replied, outlining that discovery was provided that day to Mr Burke. The solicitors also stated that it had “not been possible” to finalise written submissions but said that they would be delivered by 13 March.

High Court

In an email response, the registrar outlined that it was not acceptable that submissions were late and the school’s solicitors could not unilaterally extend the time to file its submissions without notice to the court.

Although Mr Burke outlined that he had “serious concerns” regarding the school’s discovery, he concluded that he wished for an early trial. His dismissal from the school was due to take effect on 21 April 2023 and so he wished for the trial (which included a counterclaim against the school) to take place before that.

In an email on 8 March, the school’s solicitors apologised for not seeking permission from the court regarding the late filing of submissions. It was said that Mr Burke’s discovery request was more extensive than expected, which delay matters.

The school also sought a further “for mention” hearing to deal with the fixing of a date, noting Mr Burke’s “disposition to the revised directions” from 14 February.

In a written ruling on 9 March 2023, Mr Justice O’Moore stated that “the interplay between the making of discovery and the preparation of legal submissions is not immediately apparent”. It was said that the court had “consistently sought to move this action on” and “dealing with a wave of emails has not assisted the process”.

The court did not understand what the school’s solicitors meant when they referred to Mr Burke’s “disposition” to the revised directions. There was no complaint that he had not complied with the directions and if it was intended to revisit the directions, it was “simply too late”. The court had proceeded on the basis that the directions would facilitate a trial in March and “that is what is to happen”.

Further, it was clear to the parties from 14 February that the court had decided on a trial in March if directions on witness statements and discovery were met. Although the notification of the trial date had been deferred to clear up the issues which had arisen, this did not change the fact that a trial date was to be set. No reason had been provided by the school to change this approach.

Critically, since discovery had been dealt with by the time of the ruling, a trial date court be set, the court said.

The court was also conscious of the Court of Appeal comment that the substantive hearing should take place in early course. Agreeing with this comment, the court noted that it had made directions for an “unusually early trial”. It was not explained why the court should defer fixing a hearing date.

Conclusion

The court directed that the trial would take place on 28 March 2023. The school was to provide its written submissions by 13 March, with Mr Burke having until 22 March to serve his submissions.

There were also three outstanding matters, being Mr Burke’s compliance with court orders, the costs of the stay motion and the costs of the contempt motion. Decisions on these issues would be given in the week commencing 13 March 2023.

The Board of Management of Wilson’s Hospital School v. Burke [2023] IEHC 123