High Court of Ireland Decisions

APPROVED                                                               [2025] IEHC 208

 

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THE HIGH COURT

 

2022 4507 P

BETWEEN

 

THE BOARD OF MANAGEMENT OF WILSON'S HOSPITAL SCHOOL                                                                                                                                                                                                                                                                             PLAINTIFF

AND

 

 

ENOCH BURKE

 

(NO. 4)

                                                                                                               DEFENDANT

 

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 there was jurisdiction to appoint a receiver to protect the fund out of which the costs were payable. The court drew a distinction between its jurisdiction to appoint a receiver and its approach as a matter of practice, emphasising its broad jurisdiction to provide an injunction or to appoint a receiver independently of the power conferred by Section 25 of the Judicature Act 1875 (equivalent to Section 28 of the Supreme Court of Judicature (Ireland) Act 1877). Lindley L.J. said:

"That is the principle on which the learned judge has acted here - a perfectly sound principle, even without invoking the aid of s. 25 of the Judicature Act. But the introduction of that section does not curtail the power of the Court to grant injunctions or to appoint receivers: it enlarges it. It has not revolutionised the law, but it has enabled the Court to grant injunctions and receivers in cases in which it used not to do so previously... but where in practice it never did so."

19.              In Picton v Cullen [1900] 2 I.R. 612, the Court of Appeal upheld an order appointing a receiver by way of equitable execution over the salary and emoluments of a public-school teacher which had fallen due.

20.              While recent jurisprudence in this jurisdiction tended to emphasize that a receiver could not be appointed over earnings or wages, in the last 10 years there has been a distinct change in tone in that regard.

21.              In Flanagan v Crosbie [2014]1 I.R. 576, Hogan J., in discussing the appointment of such a receiver, said

"If, therefore, the matter were to be viewed afresh examined from the standpoint of first principles, then tradition apart, there seems no reason, in principle, why an order for the appointment of a receiver by way of equitable execution could not be made in respect of legal as well as equitable interests."

22.              While he overturned the appointment, one of the reasons that he gave was based on the administrative burden which might (and in the case before him, would) be imposed on an innocent third party by the appointment of a receiver.

 

ACC Loan Management v Rickard

23.              However, it is clear, that the decision of the Supreme Court in ACC Loan Management v Rickard has clarified the law. That case concerned the appointment of a receiver over payments due to the Defendants (judgment debtors of the Plaintiff) under the EU Farm Single Payment Scheme ("SPS") and the EU Basic Payment Scheme ("BPS").  An order appointing a receiver over SPS payments had been made by the High Court. An application was made to vary the receiver's appointment, reflecting the variation of the relevant scheme from the SPS to the BPS, which was granted by the High Court.

24.              The Defendants appealed and their appeal was dismissed by the Court of Appeal. Having obtained leave to appeal to the Supreme Court, the Defendants' further appeal was dismissed by the Supreme Court. In the Court of Appeal, the Defendants argued that a receiver could not be appointed over legal interests. They also argued that a receiver may not be appointed to receive future debts and, even if a receiver could be so appointed, he should not be appointed over BPS payments which were in the nature of salaries, wages or earnings.

25.              The Court of Appeal seemed to accept the principle argument in regard to salaries, wages or earnings but upheld the High Court order.

26.              MacMenamin J. delivering the judgment of the Supreme Court, traced the developments in equitable remedies, such as the Mareva injunction. He observed:

"Inescapably, therefore, the next question is, if this court was prepared to countenance incremental development of the terms "just or convenient" in the context of Mareva injunctions, does it not logically equally follow that, by analogy, there may be an incremental development in the law regarding the appointment of receivers? This question arises in a more focused way if, it is characterised as one regarding, first, what was the practice of courts prior to 1877, and, second, what jurisdiction was actually vested in the courts by the Supreme Court of Judicature (Ireland) Act 1877. Such matters of interpretation became, and to a degree have remained as, a source of unresolved dissonance in Ireland."

27.              And what is particularly relevant in the context of this case, he noted that the First Named Defendant has never furnished a statement of affairs, which was an important feature, and therefore, did not give any indication as to his assets. Nor had he outlined why, in his particular case, the making of an order would be unjust or inconvenient. His defence has been purely technical. The judge added:

"While it is too glib to say that purely technical defences may elicit technical judicial responses, one cannot lose sight of the broader perspective; that is, in the modern era, the courts here and elsewhere have evolved a series of procedures, which subject to suitable safeguards, have been found to be effective to give effect to judgments and orders. It would seem incongruous that this one area of receivers should remain in isolation from these incremental developments, not only the development of Mareva injunctions, but also Anton Piller and Bayer orders (cf. Piller KG v. Manufacturing Process [1976] Ch 55; Bayer A.G. v. Winter [1986] 1 WL.R. 497)."

28.              If that is the view in relation to the area of receivers, it can only be the case that where the court is exercising its jurisdiction to control its own procedures and orders, that the same must be true with even greater emphasis and vigour.

29.              He went on to say:

"The first defendant had no accrued legal right to demand payment of specific sums of money under the BPS. He had no debt claim against the Department capable of being the subject of a garnishee order. It was not a salary payment for work done. Rather, the first defendant had a right to claim entitlement from the Department. This was an intangible property right in the nature of an equitable chose in action. It was not an emolument by way of salary or fee derived from office."

30.              In this case, the sums which are sought to be subject of the appointment of a receiver, are not an emollient by way of salary or fee derived from office. They are his paid administrative leave, which is not, in any real sense, a salary for "work done".

31.              He noted that Section 28(8) of the Supreme Court of Judicature (Ireland) Act 1877 had "enlarged very much the powers which Courts of Equity formerly possessed of granting receivers. It is now merely a question whether, in any case, the appointment of a receiver would be just and convenient."

32.              He considered the old jurisprudence including Holmes and Cummins noting that the Master of the Roles in Cummins drew a distinction between the question of jurisdiction and practice. "He did not say that the courts of equity had no jurisdiction to grant such an order, but that, in practice, they did not do so."

33.              Noting the development of the jurisprudence in the neighboring jurisdiction (Masri v. Consolidated Contractors Int (UK) Ltd (No 2) [2008] EWCA Civ 303) which cast doubt upon the strength of the Victorian authorities he expressed a word of caution.

"The obligation on the court is to grant an order only when it is "just". Such a conclusion can only be based on the facts of the case, and by ensuring that an application to appoint a receiver by way of equitable execution is appropriate and does not have the effect of being overly onerous on a judgment debtor".

34.              He felt that Section 28(8) of the Supreme Court of Judicature (Ireland) Act 1877 must now be interpreted in order to make allowances for "changes in the law" in this State and the number of areas critical to commercial life in the 21^st century. He said: "But, more fundamentally, a more flexible interpretation does not require the law be more demanding on judgment debtors; rather it simply requires that a judgment debtor lay his or her cards on the table, in order that a court can do "justice", a value that takes priority over "convenience".

35.              I note that Rickard has since been followed and applied in Allied Irish Bank PLC & ors v Sheahan [2021] IECA 183 and Allied Irish Banks PLC v Bradley [2023] IEHC 179. In Bradley, Barniville P. noted that the Supreme Court in Rickard had stressed the flexibility of the power to appoint a receiver under the 1877 Act and under the Rules but had stressed that a flexible interpretation of the words of Section 28 of the Act enabled the court to do justice which he described as a value that takes priority over convenience.

36.              In those circumstances, it seems to me that the court, on being satisfied that it is just and convenient to appoint a receiver by way of equitable execution, has the power to do so.

The Application of the Law to the Present Case

37.              As things stand, the Defendant is on paid administrative leave. He is not in receipt of a salary, no matter how he may characterise it. He is precluded by court of order, after a full hearing, from trespassing on the school premises. He has been put on administrative leave by virtue of his own actions. Paid administrative leave, without the performance of ongoing professional services, is not to be equated with salary, wages or earnings in the context of an appointment of a receiver, since such payment does not relate to any work done, since he is not doing any work.

38.              I regard it as being very significant that the very party to whom he owes the fines, as a result of his own egregious behaviour, namely the State, is the very party who is making payment for his administrative leave, through the Department of Education.

39.              I am satisfied, having considered the views and the analysis of MacMenamin J. in Rickard, that the appointment of a receiver is a matter of practice rather than jurisdiction. If this was a matter of jurisdiction before the Judicature Act, I did not believe it survived (or ought not to have survived) the expansion of jurisdiction effected by that Act.

40.              While a receiver is not generally appointed over future salary, earnings or wages, as I said above, the character of the payments here cannot be said to be such, since they are payments which arise from administrative leave and are not contingent on his continued performance of a teacher with professional duties or a teacher continued employment by a school.

41.              Since he has flatly refused to furnish an affidavit as to his income and expenses, as I directed, which in itself is a breach of a court order, as in the Rickard case, there is no evidence before me of any hardship which might arise.

42.              The court is exercising its contempt jurisdiction, as Edwards J. noted in his judgment in the Court of Appeal (The Board of Management of Wilson's Hospital School v Burke [2024] IECA 86):

"a court is entitled to control its own process; and it has, by way of inherent jurisdiction, both the power and the means of ensuring that it is shown the necessary respect; not out of self-regard, or any expectation of deference for the person/personages of the judge or judges concerned, but rather out of deference to the importance of the Rule of Law itself".

43.              The court must have the power to police its own orders. the underlying indebtedness relates to a fine imposed by the court in the exercise of its contempt jurisdiction. As I noted in Burke (No.3), Mr. Burke has demonstrated a "total and utter rejection of the norms of a civilised society to abide by the rule of law".

44.              In line with the observations of McMenamin J, in Rickard, the appointment of a receiver would not impose any significant administrative burden. As noted above, the State is both Mr Burke's paymaster and the person to which fines are owed. A receiver, once appointed, would not have to deal with difficulties consequent upon taking in complex or uncertain assets, or uncooperative third parties.

45.              In all those circumstances, I believe that it is 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.

46.              Accordingly, on the 18^th of March 2025, I appointed Mr. Myles Kirby Chartered Accountant as receiver by way of equitable execution, having satisfied myself as to his suitability based upon his own affidavit dated the 12^th of March and that of Mr. Michael Cummins solicitor also dated the 12^th of March 2025.

 

The Application of the Attorney General for an Order of Garnishee

47.              When the matter came back to court on the 25^th of March, Mr. Kennedy informed me that he was of the opinion 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.

48.              In relation to the court's jurisdiction to make such an order, he referred to his previous submissions in relation to the making of such orders over debts owing or accruing to a judgment debtor including a bank account in credit. To that extent, he relied upon the case of Moorview Developments Ltd and Others v First Active Plc and Others [2009] IEHC 214, Allied Irish Banks PLC v O'Reilly [2015] IECA 209.

49.              In Burke (No.3) I discussed, in a general way, such principles, but I think it would be appropriate to set out the law in a more comprehensive fashion.

a)      Garnishee orders are available under the Common Law Procedure Amendment Act (Ireland) 1856 pursuant to the procedure set out in Order 45 Rules 1-8 of the Rules.

b)      A two-stage procedure is prescribed by Order 45 Rule 1(1) of the Rules whereby a "conditional garnishee order" or a "garnishee order, nisi" may be made on an ex parte basis, followed by a hearing to show cause at which the said order may be made absolute or set aside.

c)      Garnishee orders are available where:

(i) judgment has been entered (or an order made) against a judgment debtor, which remains unsatisfied and;

(ii) a person (the garnishee) is indebted to judgment debtor and is within the jurisdiction.

d)      The better view of the authorities is that prior attempts at execution are not necessary before obtaining a garnishee order nisi. However, such an order is discretionary (Roberts Petroleum Ltd v Bernard Kenny Ltd [1982] WLR 301, Response Engineering Ltd v Caherconlish Treatment Plant Ltd [2011] IEHC 416).

e)      Other important limitations on garnishee orders as a remedy include that a debt must be in existence at the time of the application (Webb v Stenton (1883) 11 QBD 518) and that a garnishee order binds only so much of the debt owing to the judgment debtor from the garnishee as the judgment debtor can honestly deal with at the time the order is made (Re General Horticultural Co; Exp. Whitehouse (1886) 32 Ch D 512 ).

f)       Garnishee orders are available over bank accounts in credit (Reidy v Casey [2020] IEHC 423) and instalments of salary which have fallen due (including arrears).

By way of elaboration on the availability of garnishee orders over bank accounts in credit:

a)      In Reidy v Casey, on the ex parte application of the judgment creditor, Lawson and Harrison JJ. in the Common Pleas Division made a conditional order of garnishee to attach (but not to pay) the amount of a deposit receipt in Bank of Ireland.

b)      In Allied Irish Banks PLC v McGuigan [2018] IEHC 67, Barrett J. observed "a commonly attached debt is the debt owed by the judgment debtor's bank to the judgment debtor under a bank account." While the conditional garnishee order in McGuigan (made in respect of a solicitor's account) was ultimately not made absolute (for reasons which do not arise on the present application), Barrett J.'s quoted dictum clearly indicates the availability of such relief.

c)         In Infront Partners spa v Media Partners & Silva Ltd; Re Media Partners and Silva Ltd [2019] IEHC 318, the Plaintiff had obtained two European Orders for Payment ("EPOs") against the Defendant. The Plaintiff obtained a conditional order of garnishee over an Irish bank account and applied to have the order made absolute. While Houghton J. declined to make the order absolute on the grounds which do not arise in the present application, namely the application of the Companies Act, there is no suggestion in the judgment that such relief is not available over a bank account. At para. 25, Houghton J referred to the following passage from Ellinger's Modern Banking Law (5^th ed. Oxford University Press (2011)), cited an argument by the Plaintiff in respect of a third-party debt orders, the equivalent of England and Wales of garnishee orders:

"The service of an interim order gives rise to a number of disclosure obligations on the part of the bank, operates to freeze a sum in the hands of the bank that is equivalent to the amount of the order, and creates an equitable charge on the debt in favour of the judgment creditor "

d)        The availability of a garnishee order in respect of a bank account and credit is clear from academic commentary such as Breslin and Corcoran's Banking Law (3rd ed. (2019)).

Discussion on the Application for Garnishee

50.              The first thing to note that is that such an application is a two-stage process. A conditional order is made, and then the matter comes back to court on notice to the judgment debtor, as to show cause why the order should not be made absolute.

51.              Having heard the submissions of Mr. Kennedy, under the particular circumstances of the case where the Defendant has flatly refused to pay the fines which were imposed upon him, amounting to €79,100, leaving aside his continued breach of court orders, I made a conditional order of garnishee returnable to Tuesday the 25^th of March 2025.

52.              The matter returned to court on the 25^th of March. On this occasion, the Defendant turned up. On all previous occasions he had refused to do so, presumably on the basis that he was too busy breaching court orders, or to use his own words, attending his place of work, in full and fragrant disregard of the permanent injunction of Owens J.

53.              I heard the submission of Mr. Kennedy, and then sought the Defendant's views. He handed to me a documented titled "Submission of Enoch Burke". In his eighteen paragraph submissions, he did not deal, in any way, with the issue before the court, which is why the conditional order should not be made absolute. Instead, he dealt with why he was suspended from his teaching post.

54.              He went on to criticise the judgment of Owens J. and alleged that the courts have never acknowledged the breach of his constitutional rights in relation to the matter, totally ignoring his own egregious actions.

55.              He then went on to criticise this court in regard to its engagement with the Attorney General. He accused this court of uttering false statements and was generally insulting and abusive.

56.              In the only part of his submission which could be said to relate to the application before court, was at para. 18 he said what the court was attempting, in conjunction with the Attorney General, to seize his bank account, which he said was wholly unprecedented, unjust and profoundly wrong.

57.              Had he simply made this submission in an appropriate manner, the court would least have had the opportunity of hearing it. Instead, he continued to shout over me, refused to answer my questions and ultimately when I gave him some minutes to make his assertions, they simply were not to point.

 

Decision

58.              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 seems to me it follows that the appropriate order to make is to make the conditional order absolute.

Conclusion

59.              During the six months or so that I have been hearing this matter, some things have never changed. On the occasions where he did not turn up, members of his family attended court and were, on the whole, disruptive and rude. When he did attend in person, he too was disruptive and unfailingly rude. He showed a complete and utter disregard for the role of the court and the orders of court. Not only has he acted in breach of court orders and found to be in contempt of court, for which he was imprisoned, but now he seems indignant at the fact that he was let out of prison, and the court has decided to collect the fines, which have already been imposed, by the appointment of receiver by way of equitable execution and an absolute order of garnishee. I have also imposed a further fine of €1,400 per day or any part of the day while the Defendant continues to breach the court orders and refuses to purge his contempt.

60.              It is noteworthy that the Defendant is a schoolteacher, someone who should be setting a good example to students by his words and deeds. His obligations and duties to his pupils seem to have gone out the window in pursuit of his agenda.

61.              It is worth setting out the nature of the contempt which the Defendant is guilty of. As the decisions of at least four Judges of the High Court have made very clear, the contempt which the Defendant is guilty of is civil contempt, or contempt in the face of the court. The case law suggests that the purpose of imposing a penalty on somebody who is guilty of contempt in the face of the court, is not meant to be punitive but is in fact meant to be coercive.

62.              However, there is a form of civil contempt, which is so egregious that punishment of it is to be both punitive and coercive. In Shell Ireland Ltd v McGrath [2006] IEHC 108, Finnegan P. observed:

"On a review of the cases I am satisfied that committal for contempt is primarily coercive, its object being to ensure that Court orders are complied with. However, in cases of serious misconduct the Court has jurisdiction to punish the contemnor ... In Ross Company Ltd & Anor v Patrick Swan & Ors, O'Hanlon J. was of the view that in an appropriate case the Court must exercise its jurisdiction to commit for contempt not merely for the primary coercive purpose but in order to vindicate the authority of the Court and in which case the Court has jurisdiction to make a punitive order.... A democracy such as ours functions on the premise that orders of the Court will be obeyed."

63.              That is the category of contempt in which the Defendant has put himself. At any time, he is free to come to court and purge his contempt. He holds the power to end this matter once and for all. It is now a matter for himself and himself alone. He should not be subject to the malign influence of others; he must decide for himself.

64.              In the meantime, a daily fine of €1,400 applies for everyday or part of a day he refuses to purge his contempt.

 

Final Orders

65.              The court, having been informed that the money standing in the Defendant's account has been paid to the court's fines account and that the order of attachment is no longer necessary, the court vacated that part of the order of the 25^th of March 2025 which was perfected on the 26^th of March 2025 whereby the account was attached in the sum of €79,100 to answer the fines imposed by the court.

66.              Having heard the parties in relation to costs, I've made costs orders in favour of the Plaintiff and the Attorney General. The Receiver's costs have been adjourned with liberty to apply.