Board of Management of Wilson's Hospital School v Burke [No.3]

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Nolan
• Judgment Date: 21 February 2025
• Neutral Citation: [2025] IEHC 104
• Docket Number: 2022 4507 P

Between:

The Board of Management of Wilson's Hospital School

Plaintiff

and

Enoch Burke (No. 3)

Defendant

[2025] IEHC 104

2022 4507 P

THE HIGH COURT

Should defendant be released from jail - failure to purge contempt - breach of article 44 of Constitution - matter listed

Facts: This case had a long history, including many judgments of of O'Moore J. In Board of Management of Wilson's Hospital School v Burke (No.1) [2024] IEHC 7 46 Nonlan J decided the Defendant should be released from jail, notwithstanding the failed to purge his contempt. In the case of [2023] IEHC 144, Nolan J decided the daily fine of €700 a day was not draconian enough and should be raied to the sum of €1.400 per day. The matter was back before Nolan J on 21 January 2025 as the defenant continued to act in contempt of the Court Order of Owens J. Additionally, the defendant failed to pay any fines directed by O'Moore J in 2023 and yet, still was recieving his salary.

The State, respresenting the Attorney General, the Department of Education and the Department of Finance, confirmed that the Defendant is employed by the Plaintiff with his salary paid by the State. On the key issue of the fine imposed, the state referred to Meath County Council v Hendy [2023] IECA 55, in which Whelan J addressed the principles in respect of civil contempt.

Mr Burke's submission were viewed by the Court as a rehasing of arguments that the Plaintiff and the Court breached his article 44 Constiution Rights, which guarantees his freedom of conscience and practice of religion, by his 513 days he has spent in prison. The imprisonment was an outcome of his refusal to follow the instructions of the Principle of the school to refer to a pupil with the "they" pronoun. Mr Burke futher submitted there was no basis in Irish law for the demand's of the Principle, and every judge that has heard this case "has refused to acknowledge the truth and uphold the Constitution and the law", which he describes as "an appalling travesty of justice".

The key issue to be determined in this case is how the court should enforce the collection of the daily fines that they can impose in cases of civil contempt. The Judge was satified that the court had the power to make an order to driect the Defendant's salary be paid to discharge fines under Order 42 Rule 25 and Rule 27 of the Rules of the Superior Court. The Judge further held there is no reason in principle to prevent the court from enforcing a fine and was satisifed that the court has power to make a condition order of Garnishee. The amount owed by the defendant was fixed by the Judge as €79,100 as of the 24th February 2025.

Nonlan J held that the Attorney Generally was to be given liberty to move an application for a conditional order of Garinshee for all debts including salary owning or accuring from the second and third named notice parties to answer the fines imposed. The Defendant was directed to appear before the court with evidence to all assests and income for the court to consider his means to pay the fines. Matter to be listed on 7th of March 2025.

Conditional order made

JUDGEMENT of Mr Justice Nolan delivered on the 21 ^st day of February, 2025

Background

1 . In Board of Management of Wilson's Hospital School v Burke (No.1) [2024] IEHC 746, having considered detailed submissions from the Plaintiff, the activities of the Defendant and the use of public funds, I decided that the Defendant should be released from jail, notwithstanding that he has failed to purge his contempt. I stated that the daily fine imposed by O'Moore J. in Board of Management of Wilson's Hospital School v Burke [2023] IEHC 144 of €700 a day, was not draconian enough and that it was my intention to increase that fine to the sum of €1,400 per day.

2 . I urged him to consider the futility of his actions and hoped against hope that he would refrain from breaching the order of Owens J. where he granted a permanent injunction prohibiting the Defendant from attending the school premises.

3 . I also directed that the Attorney General and representatives of the Department of Education and Department of Finance, come to court for the purposes of considering why the Defendant's bank account should not be sequestered and or why the Defendant's salary, presently being paid by the State, should not be paid to satisfy the fines imposed by the court, which the Defendant has refused to pay.

The Hearing on the 21st of January 2025

4 . On the 21 ^st of January 2025, the matter came back before me. It is clear that the Defendant has not considered the matter over the Christmas break and once the school opened on the 6 ^th of January, has continued to attend the school. To be precise, he has gone through the gates and on occasions, has entered the school building. This is in flagrant breach of the court order of Owens J., a fact he knows well. Therefore, not only has he not purged his contempt he has, to use a colloquial phrase, doubled down on it.

5 . Therefore, the time has come for the court to consider alternative methods to ensure compliance with its orders.

6 . On top of that, he has failed to pay any of the fines which were directed by O' Moore J. in 2023 and yet, is still in receipt of his salary.

The Submissions

7 . Mr. Kennedy SC appeared on behalf of the Attorney General, the Department of Education and Department of Finance (“the State”). An affidavit has been filed by James Walsh, principal officer of the Department of Education, who confirmed that whilst the Defendant is employed by the Plaintiff, his salary is discharged by the State, who pay it upon instruction from the school, as it does for all other teachers employed in an Oireachtas funded teaching post.

8 . The State has kindly furnished outlined legal submissions, as have the Plaintiff, for which I am very grateful. I have also received correspondence from the Defendant which could not be considered a submission, since he simply rehashes his arguments that the Plaintiff and the court are breaching his rights under Article 44 of the Constitution, which guarantees to every citizen the rights to freedom of conscience and practice of religion. He repeats that he has spent 513 days in Mountjoy prison because he refused to abide by the instruction of the principal of the Plaintiff that he use the “ they” pronoun in relation to a young pupil.

9 . He says that there is no basis in Irish law for the principal's demand, and that every judge he has been before has refused to acknowledge the truth and uphold the Constitution and the law. He describes this as an appalling travesty of justice.

10 . Finally, in regard to the matter presently before the court, he says it is profoundly wrong, but he doesn't say why.

11 . None of this is true. The reason why he has spent so long in Mountjoy prison and why the court is now considering what further steps should be taken, has nothing to do with the use of language, but a simple matter of abiding by a court order.

12 . Society breaks down if court orders are ignored. Therefore, as this court has repeated on many occasions, the Defendant is fundamentally incorrect in his assertion that this is something to do with his religious beliefs. Nothing could be further from the truth. It is because of his total and utter rejection of the norms of a civilized society to abide by the rule of law.

The Submissions of the State

13 . Mr. Kennedy SC for the State, has set out the procedural history of the case, including the many judgments of O'Moore J. He also has opened the general principles applicable in respect of civil contempt. On the key issue of the imposition of a fine, he refers to the case of Meath County Council v Hendy [2023] IECA 55, where the principles applicable were comprehensively addressed by Whelan J., which I will deal with below.

14 . Mr. Kennedy has very helpfully brought me through the law relating to sequestration, orders of Garnishee and the Rules of the Superior Courts (“the Rules”).

15 . Finally, he dealt with who should move such an application.

Submissions of the Plaintiff

16 . Mr. White SC for the Plaintiff supports much of the submissions made by the State. He argues that one of the primary obligations of the State is to provide a court system which executes the orders that it pronounces. In those circumstances, he suggests, respectfully, that the role of enforcing the court order should fall to the State. In support of this contention, he refers me to the Law Reform Commission Consultation Paper on Contempt of Court (LRC 47–1994) which quoted a similar report in Australia in regard to an accruing fine which echoes the words of Whelan J. in Hendy, that civil contempt serves two distinct purposes; the enforcement of an order of court as between the parties to the litigation by way of civil execution and separately, the penal or coercive jurisdiction to be exercised by the court in the public interest to ensure compliance with the terms of the order. However, this power must be exercised with caution.

17 . He makes the case, which has often been repeated by the courts, that there is a significant legislative lacuna dealing with civil contempt in this jurisdiction and whilst there was a contempt of court bill in 2017 (Contempt of Court Bill of 2017), it has lapsed with the dissolution of the 32 ^nd Dáil.

The Judgments of O'Moore J.

18 . In The Board of Management of Wilson's Hospital School v Burke [2023] IEHC 36, O'Moore J. noted that applications either to punish a contemnor or to seek orders to coerce that individual to comply with existing court orders, require care to be taken to ensure fairness of procedures. He quoted Hardiman J. in IBRC v Quinn [2012] IESC 51, where he said at para 40:-

“One could find legal authority for the proposition that an application to commit for contempt has to be approached with great caution, over a period of many...