Board of Management of Wilson's Hospital School v Burke [No.4]

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Nolan
• Judgment Date: 09 April 2025
• Neutral Citation: [2025] IEHC 208
• Docket Number: 2022 4507 P

Between

The Board of Management of Wilson's Hospital School

Plaintiff

and

Enoch Burke (No. 4)

Defendant

[2025] IEHC 208

2022 4507 P

THE HIGH COURT

Contempt – Garnishee order – Appointment of receiver – Notice parties seeking order of garnishee – Whether the conditional order of garnishee should be made absolute

Facts: The High Court (Owens J) granted a permanent injunction restraining the defendant, Mr Burke, from entering or trespassing on the premises at Wilson's Hospital School. The defendant breached the court order. On the application of the plaintiff, the Board of Management of the school, Nolan J directed that the defendant would pay a daily fine of €1,400 per day or any part of a day until he purged his contempt. Mr Kennedy SC for the Attorney General and the other notice parties made submissions to the court in relation to the appropriate type of action which could be taken so as to enforce the court orders and to ensure collection of the fines which were due and owing by the defendant to the State. Applying ACC Loan Management v Rickard [2019] IESC 29, Nolan J held that it was just and convenient to appoint a receiver by way of equitable execution over the monies to be paid by the notice parties to the defendant. Accordingly, Nolan J appointed Mr Kirby Chartered Accountant as receiver by way of equitable execution. When the matter came back to court, Mr Kennedy informed Nolan J that he was of the opinion that there were monies standing to the credit of the defendant in his bank account in Bank of Ireland, Castlebar County Mayo. He therefore moved an application for a conditional order of garnishee over such sums which might be in the defendant’s bank account to satisfy the totality of the fines due. Having heard the submissions of Mr Kennedy, under the particular circumstances of the case where the defendant had flatly refused to pay the fines which were imposed upon him, amounting to €79,100, leaving aside his continued breach of court orders, Nolan J made a conditional order of garnishee returnable to 25 March 2025.

Held by Nolan J that, having heard the submissions of the Attorney General and the notice parties and having heard the defendant and his refusal to make any relevant submissions on the issue, it followed that the appropriate order to make was to make the conditional order absolute.

The court, having been informed that the money standing in the defendant’s account had been paid to the court’s fines account and that the order of attachment was no longer necessary, vacated that part of the order of 25 March 2025 whereby the account was attached in the sum of €79,100 to answer the fines imposed by the court. Having heard the parties in relation to costs, Nolan J made costs orders in favour of the plaintiff and the Attorney General; the receiver’s costs were adjourned with liberty to apply.

Conditional order of garnishee made absolute.

JUDGEMENT of Mr Justice Nolan delivered on the 9 ^th day of April 2025

1 . In the Board of Management of Wilson's Hospital School v Burke (No. 3) [2025] IEHC 104, I stated that I was satisfied that the fine previously imposed by O'Moore J. had not had the desired effect of preventing the Defendant from breaching court orders. In those circumstances, I said that based upon evidence that the Defendant had failed to purge his contempt, he would then be subject to a fine of €1,400 for every day, or part of a day that passed until he did so.

2 . I also noted that in 2023, he had been asked to provide details of his assets and incomes, but he had robustly refused to do so. I directed that the Defendant should appear before the court to show cause as to why he should not pay the State the fines imposed, now due and owing. I further directed that he furnish evidence in relation to his assets and income by way of affidavit.

3 . Since then, a number of things have happened. In particular on this issue two affidavits have been filed. The first from John Galligan, the acting principal of the Plaintiff and the second, is from the Defendant.

4 . In the affidavit of Mr. Galligan, he confirms that the Defendant was present on the school grounds, standing outside the school doors from 9:00am to 3:50pm from the 21 ^st to the 24 ^th of January inclusive, the 27 ^th through to the 31 ^st of January inclusive and the 4 ^th to the 6 ^th of February inclusive. On the 7 ^th of February, he gained access to the school building through a student-only entrance and tried to enter the school assembly but was stopped from doing so. He then stayed at another part of the school building, in an area which is a general-purpose area which includes first year students' lockers and toilets.

5 . On the 10 ^th of February, he gained access, again, through a student entrance, and spent the day in the same area within the school building. On the 11 ^th of February, he tried to enter the building but was stopped by the deputy principal. This meant that students were required to enter the building through a different door. Later that afternoon, he again gained access into the school building and stayed till about 3:30pm. From the 12 ^th to the 14 ^th of February, again, he entered the school building. The school was then on midterm break but he returned on the 24 ^th to the 28 ^th of February, doing as he did before. On a number of occasions, he attempted to speak to the deputy principal saying that he was here to work, or words to that effect.

6 . Mr. Galligan confirms that the Defendant speaks with students and that his presence is extremely distracting and causing significant disruption to staff and students. The deputy principal says that he is trying to not allow the current situation to consume too much of his own time but is undoubtedly impacting upon his ability to give the school the full attention that it needs. He remains concerned about the stress and strain on staff, students and parents. He believes that the Defendant's continuous actions are impacting adversely on the school as a whole.

The Court Orders

7 . As everyone who is aware of this case knows, Owens J. granted a permanent injunction restraining the Defendant forthwith from entering or trespassing on the premises at Wilson's Hospital School. That order has not been appealed. It is a mandatory injunction preventing the Defendant from entering or trespassing on the grounds and premises of the school.

8 . Based upon the sworn evidence before the court, it is patently clear that the Defendant has breached the court order. The breaching of a court order is contempt in the face of the court. That is a contempt which the court cannot ignore. It is willful disobedience of a court order. To do so would be to apply different considerations to the Defendant as apply to every other citizen of the State.

9 . As O'Moore J. noted, the case law requires that the court should take certain matters into consideration and it was for this reason that I directed that he furnish information, on affidavit, as to his income and expenses so that I could decide what further steps should be taken, including increasing the daily fine to be imposed, if necessary, in a balanced and proportionate way.

10 . However, in the affidavit which the Defendant furnished to the court, dated the 28 ^th of February 2025, he said: “as regards informing the court of my means, having regard to the foregoing I cannot in all good conscience engage in this exercise. No judge has the right to strip a citizen of his livelihood because he will not accept the denial of his constitutional rights.”

11 . In those circumstances, I have no evidence whatsoever as to what his means are. Indeed, it seems clear he has no intention of telling me what they are. Nonetheless, the court cannot ignore such blatant disregard for orders of court.

12 . Therefore, on the application of the Plaintiff, I have directed that the Defendant will pay a daily fine of €1,400 per day or any part of a day until he purges his contempt.

The Application of the Attorney General

13 . On the 7 ^th of March 2025, Mr. Kennedy SC for the Attorney General and the other notice parties made submissions to the court in relation to the appropriate type of action which could be taken so as to enforce the court orders and to ensure collection of the fines which were due and owing by the Defendant to the State.

14 . He set out the applicable principles of law dealing with an application for a garnishee order, which I will deal with in more detail below.

15 . In relation to the principles governing the appointment of a receiver by way of equitable execution, historically, the view has been taken that a receiver cannot be appointed in respect of future salary, the recent clarification of the position by the Supreme Court in ACC Loan Management v Rickard [2019] IESC 29 coupled with the particular circumstances of the present case, suggest that this route may be available.

16 . Order 45 Rule 9 of the Rules of the Superior Courts (“the Rules”) provides:

“ In every case in which an application is made for the appointment of a receiver by way of equitable execution, the Court in determining whether it is just or convenient that such appointment should be made shall have regard to the amount of the debt claimed by the applicant, to the amount which may probably be obtained by the receiver, and to the probable costs of his appointment, and may, if it shall so think fit, direct any inquiries on these or other matters, before making the appointment. The order shall be made upon such terms as the Court may direct.”

17 . The position has been that a receiver cannot be appointed in respect of future salary (see Holmes v Millage [1893] 1 QB 551, Maclaine Watson & Co. v. ITC [1987] 3 WLR 508, Masri v Consolidated Contractors International UK Ltd and Others (No. 2) 2008 EWCA Civ 303).

18 . In Cummins v. Perkins [1899] 1 Ch 16, the Court of Appeal held that...