High Court dismisses defendant's application for stay of proceedings due to failure to file defence.

THE HIGH COURT

[2022] IEHC 720 [2022 No. 4507 P]

BETWEEN

THE BOARD OF MANAGEMENT OF WILSON’S HOSPITAL SCHOOL

PLAINTIFF

AND

ENOCH BURKE DEFENDANT

DECISION of Mr. Justice Brian O’Moore delivered on the 19th December day of , 2022.

1. This is my Decision on the Defendant's application for a stay on these proceedings before this Court, and for a stay on my Order of the 14th of October 2022. That Order required the following to be done;

1. The Plaintiff was to deliver a Statement of Claim by 5 pm on the 19th of October 2022. The Plaintiff school did this;

2. The Defendant was to deliver a Defence (and any Counterclaim) by 5 pm on the 4th of November 2022. This was not done;

3. The Plaintiff was to deliver a Reply (and Defence to any Counterclaim) by 5 pm on the 10th of November 2022. This could not be done, as no Defence was delivered.

2. This action was also adjourned to the 15th of November 2022, to allow further case management directions to be made.

3. The only thing required to be done by the Defendant (Mr. Burke) on foot of this Order was to deliver a Defence. At no time after this Order was made has any satisfactory reason been given by Mr. Burke as to how he was prejudiced by delivering a Defence to this claim, or why he should not do so. Accordingly, there is no basis for me to stay my earlier Order.

4. There remains the aspect of the motion seeking a general stay on the proceedings before this Court. On the 14th of October 2022, I informed the parties that my intention was to move this case on towards an early hearing. Had these directions been complied with, it should have been possible to commence the trial of this action either before, or shortly after, the Christmas vacation. Such an early hearing would have allowed a prompt and full exploration of the merits (or lack of merits) of the case made by the school against Mr. Burke. Both sides would have been able to lead evidence, cross examine witnesses, and make submissions on any relevant legal issue involved in this dispute. It would have permitted the Court to make a final determination on the factual and legal differences between the parties. It would also have meant that any interlocutory Orders would have been replaced with final Orders. It goes without saying that either the school or Mr. Burke could have emerged as the winner after a full hearing. Put simply, had both sides cooperated with the case management proposed by the Court it is entirely possible that the trial would now be over and (depending on the outcome) Mr. Burke could be at liberty. At the least, the parties would be preparing for a hearing early in the New Year which would have authoritatively decided the issues between them (at least at the level of this Court).

5. Mr. Burke did not want the case to move on in this way and brought the current motion. The motion was heard on the 7th of November 2022. In order to give Mr. Burke's arguments the fullest consideration possible, on the afternoon of the hearing I directed that the transcript of the Digital Audio Recording be made available to me. The transcript did not become available until towards the end of November. By that time, any chance of a trial before Christmas had long since disappeared; indeed, that was the case by the time the motion was heard.

6. Mr. Burke is anxious that his appeals against a number of interlocutory Orders are heard by the Court of Appeal before there is any further progress of this action in this Court. None of the reasons he advances for this position are convincing. Any views expressed by the Court on an interlocutory basis simply cannot influence or overcome the opinion of the trial judge on the merits of a case. Equally, a finding that an interlocutory injunction should be granted does not in any way presuppose that a Plaintiff will be granted a similar injunction at trial. Temporary injunctions are very different to final Orders, and different rules apply to the grant of such reliefs. Conversely, even if an appellate court were to find that the school had not made out an arguable case in seeking an interlocutory injunction, it would not follow that the school's claim is to be dismissed. It is open to the school, as it would be open to any claimant, to recalibrate its legal arguments or bolster its evidence in order to attempt to succeed at trial. It is also unreal to suggest that, unless he has a chance to upset the interlocutory Orders on appeal, Mr. Burke will be hampered in the presentation of his defence at the trial.

7. I do not believe, therefore, that a trial of this action before the hearing of Mr. Burke's various appeals presents any risk of injustice to him.

8. In conclusion, Mr. Burke will now deliver a Defence. I will fix 5 pm on the 13th of January next as the time by which he is to do so. I will fix 5 pm on the 18th of January for the school to deliver a Reply (and Defence to any Counterclaim). The pleadings will then be sent to the Chancery Registrar on or before 5 pm on the 19th of January 2023. On consideration of these, and pursuant to the provisions of Order 63C Rules 4 and 5, I will set out the documentation to be provided by the school to Mr. Burke for the purpose of a fair disposal of these proceedings. I also intend at that time to give directions as to the delivery of witness statements and written submissions. The parties will, of course, be provided with an opportunity to be heard on these proposed directions.

9. Unless there is further disruption to the case management of this action, the trial should take place during the course of next Term.

10. This merely outlines my Decision on the application. A full judgment on Mr. Burke's motion will be delivered in January, after which any outstanding matters (including costs) will be addressed.