About this case:

• Citation:
  [2023] IEHC 144
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Brian O'Moore

Further, the court held that Mr Burke must pay the school’s costs of his unsuccessful stay application and the costs of a contempt motion. The court held that Mr Burke’s arguments against the award of costs were “quite misguided” and noted that Mr Burke’s “self praise beggars belief”.

Background

Mr Burke has previously brought an application seeking to place a stay on the High Court proceedings until his appeal in the Court of Appeal was heard and determined. This motion was rejected for reasons outlined in a decision from 19 December 2022 by Mr Justice Brian O’Moore (see [2022] IEHC 720).

Further, the school had brought a further motion in respect of Mr Burke’s contempt of court after he had been released from prison prior to Christmas 2022. The application sought the attachment and committal of Mr Burke, the sequestration of Mr Burke’s assets or such further order as was deemed appropriate. Mr Justice O’Moore ultimately decided to set a daily fine of €700 for each occasion that Mr Burke defied the court order to stay away from the school.

In a decision delivered on 16 March, Mr Justice O’Moore considered whether the school was entitled to its costs of these motions as the “winning” party. The court was also required to review the measures taken in respect of Mr Burke’s contempt of court.

Dealing first with the costs issues, the court noted that Mr Burke objected to costs being awarded against him but stated that many of his submissions were “quite misguided”. Mr Burke was not correct that he was “right” to have his appeal take precedence over the High Court proceedings, the court said.

The court rejected the submission that Mr Burke would “in effect [be required] to pay for the profession and practice of his religion”. It was said that Mr Burke’s payment of the costs of a failed procedural motion or for his “egregious disobedience of a Court Order” did not penalise him for his religious beliefs.

It was held that it would be “quite unjust” if the school had to bear the costs of Mr Burke’s misconceived motion or for a contempt motion arising from Mr Burke’s deliberate breach of a court order. This was so even if the underlying issues in the case included the question of Mr Burke’s constitutional entitlements.

Mr Burke also argued that the school had limited involvement in the stay motion, but the court said the extent of the school’s costs would be assessed by an independent costs adjudicator. Mr Burke also took issue with the conduct of the school regarding certain averments which were “false”. It was said that counsel was guilty of “grave misconduct”.

Mr Justice O’Moore noted that none of the disputed evidence was presented in the proceedings before him and it was instead a matter which arose in Mr Justice Dignam’s judgment on Mr Burke’s injunction application against the school. In that decision, Mr Justice Dignam expressly held that the school did not lie to the court, although certain averments were “manifestly incorrect”.

In light of Mr Justice Dignam’s finding, the school’s incorrect averments (later corrected) did not disentitle the school to its costs. The accusation against counsel was “utterly without justification”.

The court noted that Mr Burke described his own conduct in the proceedings, stating that he had “at all times conducted himself in a proper manner.” Mr Justice O’Moore simply stated: “This self praise beggars belief.”

A person who had refused to comply with a court order for six months had not behaved properly. Further, Mr Burke had engaged in “baseless traducing” of judges who had been involved in the case and had disrupted two sittings of the Chancery List.

Mr Burke submitted that he was unable to comply with the injunction order to stay away from the school because the order “denigrated and set at nought his constitutional rights”. This argument ignored the legal reality that Mr Burke had to comply with High Court orders. He did not have an entitlement to determined whether court orders were lawful.

Finally, the court rejected Mr Burke’s submission that he had not caused any disruption to the school. This was entirely inconsistent with the evidence of the school. Additionally, it was not for Mr Burke to determine whether he caused any mischief in disobeying a court order.

Review of fines

Mr Justice O’Moore then turned to review the €700 daily fine which had been imposed. It was not disputed that Mr Burke breached the court order every day from 26 January except on days when the school was closed or when Mr Burke was in court. While Mr Burke claimed that he received support from various people, the fact that the gardaí felt it was appropriate to arrest Mr Burke on school premises “does not suggest that his presence on the grounds is particularly helpful”.

The court noted that, at the date of judgment, Mr Burke had accrued fines totalling €23,800. These were payable on a daily basis with no deferral. It was held that it was not appropriate to increase the daily fines, but instead to crystallise the sums due by perfecting an order and allowing the school to enforce it.

As such, Mr Burke had until 4pm on 23 March to pay the fines or the school would be “at large” to take whatever steps it wished in order to enforce the fines. This could include the sequestration of Mr Burke’s assets, the court said.

Finally, the court dealt with a letter which Mr Burke had written sent to the Chancery Registrar in which he outlined his concerns to paying a fine where the court order was obtained through “false statements”. Since none of the “false statements” had formed part of the evidence before Mr Justice O’Moore, it was appropriate for Mr Burke to raise the issue with the judges who had heard the evidence.

Although he was previously advised of this in February, Mr Burke had opted not to return before the relevant judges.

Conclusion

The court held that Mr Burke had to pay the school’s costs of his unsuccessful stay motion and the school’s costs of the further contempt motion. Additionally, the court perfected an order that Mr Burke had until 23 March to pay €23,800 (being the in fines accrued before 1 March). Failure to pay the fines on this date would allow the school to take measures to enforce the fine.

The Board of Management of Wilson’s Hospital School v. Burke [2023] IEHC 144