In the ongoing, and apparently never-ending saga of Enoch Burke and Wilson’s Hospital School, which plays out every other week in the four courts, Mr. Burke is represented by himself, with occasional interjections of dubious helpfulness by family members. The school, by contrast, is represented by a barrister, one Rosemary Mallon.
This week, with reporting courtesy of Mary Carolan at the Irish Times, Ms. Mallon made this argument in open court as to why the court should decline to give Mr. Burke an injunction against the school:
Barrister Rosemary Mallon, for Wilson’s Hospital School, argued a primary reason for refusing the injunctions to halt a disciplinary hearing next Thursday is Mr Burke’s own failure to obey a court order not to attend at the school.
Those who come to court seeking equity “must do equity” and Mr Burke’s continuing breaches of court orders “are not the actions of somebody doing equity”, she said.
Mr Burke continues to “knowingly” breach court orders because he does not agree with them and that should be a sufficient basis for refusing the injunctions, she said. Mr Burke had also failed to make out a strong case against the process likely to succeed at the full hearing of the dispute and has not given an undertaking for damages should he lose, counsel argued.
It is, of course, true that Mr. Burke has and continues to knowingly breach a court injunction. Indeed, for this decision, he spent more than 100 days in Mountjoy Prison, and is presently facing an application by the school to have his personal assets seized.
Ms. Mallon, however, appears to be arguing that such sanction is not where the consequences for Mr. Burke should end. In fact, she openly advocates, on behalf of her client, in the part in bold (my emphasis) above, that the court should simply decline to rule against the school – regardless of whether the school is at fault – as a form of sanction against Mr. Burke. In other words, he has not simply, in her view, forfeited his right to liberty, and potentially his right to property. He has also, she argues, possibly forfeited his right to an impartial adjudication of his case based on the facts of it.
Now, to be completely fair: On a purely moral level, Ms. Mallon has a point. It is a bit rich, to put it mildly, for Mr. Burke to be applying for injunctions against the school at the same time as he remains in open contempt of an injunction secured against him. Indeed, one wonders why he is seeking one at all, given that, in his apparent view, such injunctions are not binding on him. The courts cannot really function as impartial adjudicators of a dispute where one party will not commit to abiding by the resolution of the judge. On an intellectual level, Mr. Burke’s utter hypocrisy here is very hard to stomach, even for a writer like me who sympathises with him on the underlying dispute in the case.
But that is a moral argument, not a legal one.
On the legal end of things, the fact is that Mr. Burke has already been punished, and indeed faces further punishment, for his decision to ignore the rulings of the court. He has served more time in prison than most people ever will. His decision was not without consequence. He is a free man today solely because, ultimately, a Judge decided that he had already served more than enough time in prison for his contempt.
The school now seeks that he be punished further, in effect if not in intent, by having the court take something other than the facts of a case before it into account in arriving at its judgment.
Were the court to go down this road, it would to my mind be an utter abdication of its own duty. Atop the four courts, and atop this article, is the statue that adorns justice: It is blindfolded, to represent the principle that justice should be blind to everything but the facts of a case. This principle, for example, is why juries are not informed, in criminal cases, if a defendant has five hundred previous convictions: You are supposed to judge the facts of the case before you, not the defendant’s record.
What Ms. Mallon seeks here is the removal of the blindfold: She argues that Mr. Burke’s case for an injunction against the school should be read and heard in the light of an entirely separate case, taken by the school against Mr. Burke.
But in fact, this is the wrong approach. “Equity” here would not be to deny Mr. Burke the honest adjudication of the court on his claim for an injunction. Equity, rather, would be the school deciding to pay the same respect to an injunction secured against it by Mr. Burke as Mr. Burke showed for the injunction secured against him. The School might have to bear similar consequences, were it to make that decision, but even so, that would be the eye for an eye approach.
The courts in this country are supposed to make decisions based on the facts of the arguments presented to them – not the manner in which those arguments are made, or the facts in separate cases. It is to be hoped, therefore, that the court treats the argument advanced by Ms. Mallon with the skepticism that it is due.
Update: A reader with legal qualifications writes:
@john_mcguirk, you say raising a litigant's past conduct to bar equitable relief (the injunction) is a moral argument, not a legal one. But the law here does have regard to past behaviour – you must 'come to equity with clean hands' – and has discretion to refuse the relief.
— William Dunne (@WilliamHDunne) January 13, 2023