The Court of Appeal has dismissed Enoch Burke’s appeals against interim and interlocutory orders made in a dispute with the Board of Management of Wilson’s Hospital School. The orders included restrictions on Burke attending the school while he was on paid administrative leave. The court did not decide the underlying dispute about whether that leave was lawful; it said those issues must be resolved at the substantive hearing.
In a judgment delivered on 7 March 2023, Ms Justice Máire Whelan agreed with the judgments of the President of the Court of Appeal and Mr Justice Edwards. She said the affidavit evidence contained irreconcilable differences on significant facts that could not be resolved at the interlocutory stage and required witness evidence at trial.
The proceedings followed a school request that Burke address a student by the student’s chosen name and pronoun. Whelan J said Burke had made clear he would not comply with the request, but had not explained how he intended to communicate with the student. She considered that uncertainty material to the school’s responsibilities for student welfare. Her judgment said the school’s statutory duties included providing for students’ development and respecting diversity, and that both the school and Burke had responsibilities towards pupils while acting in loco parentis.
The court considered orders made by several High Court judges. It upheld the interim order made by Stack J on 30 August 2022, finding there was evidence of a fair question to be tried and urgency, including the Board’s case that Burke’s permission to enter the school had been withdrawn when he was placed on paid leave. The order was a temporary measure pending the return of the case to court.
The Court of Appeal also upheld the interlocutory injunctions made by Barrett J on 7 September. Whelan J said the issue at that hearing was whether temporary restrictions were warranted pending trial, not the final determination of the parties’ substantive rights. Burke had not filed a replying affidavit for that hearing. The court found the balance of convenience favoured the injunctions, referring to the school’s operation and the welfare of its pupils.
Regarding an application Burke made on 12 September, the court found Dignam J had acted correctly after the Board undertook not to proceed with a disciplinary meeting scheduled for the following day and to give at least three days’ written notice of any later meeting. The court said the undertaking was recorded in an order and made the corresponding issues moot. It also concluded that Burke no longer sought positive intervention concerning Roberts J’s 14 September order, so that part of the appeal was not engaged.
Whelan J said the appeals against the decisions of Stack J and Barrett J should be dismissed, as should the appeals concerning Dignam J and Roberts J. She stressed that many underlying issues remained for the substantive trial, which the court said should take place promptly.