The Board of Management of Wilson's Hospital School v Burke

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian O'Moore
• Judgment Date: 16 March 2023
• Neutral Citation: [2023] IEHC 144
• Court: High Court
• Docket Number: [2022 No. 4507 P]

Between

The Board of Management of Wilson's Hospital School

Plaintiff

and

Enoch Burke

Defendant

[2023] IEHC 144

[2022 No. 4507 P]

THE HIGH COURT

Costs – Stay – Contempt – Plaintiff seeking the costs of the defendant’s motion to stay the proceedings – Whether costs should follow the event

Facts: The High Court (O’Moore J) addressed the following outstanding matters in the case: (1) the costs of the motion of the defendant, Mr Burke, to stay the proceedings; (2) the costs of the motion of the plaintiff, the Board of Management of Wilson’s Hospital School, in respect of the defendant’s continuing contempt; and (3) the review of the measures taken in respect of that contempt of court. With regard to (1), the plaintiff sought its costs on the basis that the defendant failed completely in his motion seeking a stay. On that basis, the plaintiff submitted, costs should follow the event. With regard to (2), the plaintiff submitted that the defendant was warned that appropriate measures could be sought by it should his contempt resume after his release; the defendant broke the order of Barrett J on the first day the school reopened, and the plaintiff reasonably and properly brought a motion arising from that contempt. With regard to (3), the evidence of the plaintiff was that the defendant had breached the order of Barrett J on every day since the 26th of January 2023 (when the fines were imposed) other than "days when the school is officially closed such as the weekend or the mid-term break or when he is attending the Four Courts in relation to the ongoing litigation".

Held by O’Moore J that, with regard to (1), the defendant brought a motion, it put the plaintiff to expense, it failed completely, and he should pay the plaintiff's costs. With regard to (2), O’Moore J noted that the defendant breached the order of Barrett J at the first opportunity, the plaintiff brought a motion arising from that breach, and the plaintiff sought the imposition of a periodic fine. Despite invitation by the Court, the defendant did not raise any procedural objection to the plaintiff seeking that he be fined. O’Moore J noted that the defendant was fined and persisted in his contempt. O’Moore J held that the plaintiff was therefore entitled to the costs of the motion.

O’Moore J held that, with regard to (3), on the 26th of January 2023 the Court imposed a daily fine of €700 on the defendant until either he purged his contempt or the order of Barrett J was varied; the order had not been varied and the decision of Barrett J had been upheld by unanimous judgments delivered by the Court of Appeal on the 7th of March 2023. On that basis alone, the €700 daily fine had run from the 27th of January; however, for the purpose of the order to be perfected, O’Moore J fixed the amount to be recited in the order as €23,800, being the sum due in respect of the fines as of the 1st of March 2023 (namely the date for which there was evidence of the ongoing breach). O’Moore J held that the judgment imposing the fines did not give the defendant any deferral with regard to their payment, the fines accumulated on a daily basis and were therefore payable on a daily basis. For the purpose of the order, O’Moore J held that the data for payment of the fines accrued up to the 1st of March would be 4 pm on the 23rd of March 2023. Taking a proportionate approach to the measures to be invoked in order to secure the defendant's compliance with an order found to be lawful and constitutional both by the High Court and the Court of Appeal, O’Moore J held that the correct option was not to increase the daily fine but to crystallise the sums due as of the 1st of March 2023, to have the order perfected, and thereby permit the plaintiff to take the appropriate steps to enforce the fines. O’Moore J held that, as and from 4 pm on the 23rd of March, the plaintiff would be at large as to what steps it wished to take to enforce the fines and the defendant would be at risk of such measures for as long as it took for the fines to be paid. O’Moore J held that the daily fine of €700 would continue to run until the relevant order of Barrett J was materially varied or set aside or until the defendant purged his contempt.

Costs awarded to plaintiff.

JUDGMENT of Mr. Justice Brian O'Moore delivered on the 16 ^th day of March, 2023 .

1 This is my judgment on three issues. They are;

The costs of Mr. Burke's motion to stay the proceedings.

The costs of the school's motion in respect of Mr. Burke's continuing contempt.

The review of the measures taken in respect of that contempt of court.

2 With regard to (1), the school seeks its costs on the basis that Mr. Burke failed completely in his motion seeking a stay. My judgment on that motion was delivered on the 31st of January 2023. It is correct to say that Mr. Burke did not obtain any relief on foot of his application. On that basis, the school submits, costs should follow the event.

3 Mr. Burke makes a number of submissions, many of them quite misguided. He submits that he did not initiate the action, which is of no relevance to the question of costs in either motion. He says that it was “right” that his appeal take precedence over any further movement of the High Court proceedings, which of course is the very issue decided against him on his motion. He says that his constitutional rights were “set at nought”, and therefore this should have been remedied “quickly and as a matter of priority” — again, Mr. Burke is arguing the merits of the motion rather than addressing costs considerations.

4 Mr. Burke submits that he would be “in effect [be required] to pay for the profession and practice of his religion.” This is wrong. Requiring Mr. Burke to pay the costs of a procedural motion which has failed does not penalise him for his religious beliefs. Equally, requiring him to pay the costs of a motion brought because of his egregious disobedience of a Court Order is not a penalty visited upon Mr. Burke on religious grounds. As pointed out in my judgment of the 21st of December 2022, requiring someone not to trespass on private property in no way violates any religious beliefs.

5 Mr. Burke further argues that the “exceptional public importance” of the action constitutes grounds for no costs to be awarded on either motion. However, each motion must be seen as a thing in itself. The stay application was (as already observed) a procedural motion which failed. Regardless of the context of the overall action, and of the issues potentially engaged in it, it is difficult to see how justice is served by ordering that the school bear the costs of a misconceived motion which Mr. Burke chose to bring. Equally, it would be quite unjust if the school had to discharge the costs of the contempt motion, which was brought by it in light of Mr. Burke's deliberate and continuing disregard of a Court Order. This is so even if it transpires that the underlying issues in the case include the question of Mr. Burke's constitutional entitlements. These entitlements could and should have been litigated without Mr. Burke's conscious and ceaseless contempt of court.

6 Mr. Burke submits that, in light of the judgment of Dignam J [2023] IEHC 22, the disciplinary proceedings taken by the school have “gone irremediably wrong”. However, that argument conflates the decision on the costs of these two discrete motions and the possibility that Mr. Burke might succeed on some grounds at the trial; that possibility will crystallise (or not) at the hearing. It does not excuse the wasteful stay motion brought by Mr. Burke nor does it insulate him for responsibility for the costs of the contempt motion which the school reasonably felt obliged to bring.

7 Mr. Burke next takes issue with the limited extent of the school's involvement in the stay motion. Again, this argument is misconceived. The school successfully resisted the motion. The extent of the costs it incurred in doing so will in due course to be assessed by the appropriate independent costs adjudicator.

8 Mr. Burke further submits that the conduct of the school and its counsel support the making of no order as to costs on both motions. Relying on section 169 (1) of the Legal Services...