Court allows appeal for injunctive relief against disciplinary panel due to apprehended bias but denies costs due to contempt.

APPROVED

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THE COURT OF APPEAL

Record Number: 2024/173

Neutral Citation Number [2025] IECA 148

Faherty J. Binchy J. Butler J.

BETWEEN/

ENOCH BURKE

PLAINTIFF/APPELLANT

- AND -

SEÁN Ó LONGÁIN, KIERAN CHRISTIE AND JACK CLEARY

DEFENDANTS/RESPONDENTS

Judgment of Ms. Justice Faherty dated the 25th day of July 2025

1. Two issues arise in this appeal. The first is whether Mr. Burke (hereafter “the appellant”) has made out a case to the requisite threshold to secure interlocutory injunctive relief against the disciplinary panel that has been convened to hear his appeal against his dismissal from his employment as a teacher on the basis that a reasonable apprehension of objective bias arises by the presence of the second named respondent on the panel. The second issue, if the appellant succeeds in relation to the first question, and the remaining requisite steps in relation to securing an interlocutory injunction are otherwise met, is whether the Court in the exercise of its discretion to grant relief should hold that the appellant is disentitled to the equitable relief he seeks by reason of his contempt of court.

2. This appeal concerns Mr. Burke’s application for interlocutory injunctive relief restraining the respondents from holding a Disciplinary Appeal Panel hearing in relation to his appeal against a decision of his employer, Wilson’s Hospital School (hereafter “the School”) to dismiss him. In essence, the issue before the Court concerns the appellant’s application for the recusal of Mr. Kieran Christie (the second named respondent), the General Secretary of the Association of Secondary Teachers in Ireland (ASTI), from sitting on the said Disciplinary Appeal Panel (hereinafter “the DAP”). The appellant’s application for the recusal of Mr. Christie is made on the basis of alleged objective bias. In a judgment delivered on 15 February 2024 ([2024] IEHC 207), the High Court (Dignam J.) (hereafter “the Judge”) rejected the appellant’s claim of objective bias. The order of the High Court issued on 22 March 2024 (as perfected on 27 June 2024) and it is from this order that the appellant now appeals.

Background

3. The appellant was dismissed from his employment at the School by a decision of the School’s Board of Management following a meeting on 19 January 2023. In summary, the events which led to the appellant’s dismissal are as follows.

4. On 9 May 2022, staff at the School, including the appellant, received an email from the principal of the School, informing them that a student would be making a social transition in their gender identity from the next day and stating that from then on the student would become known by a different name and that “they” should be used in place of the pronoun that had been used up to that point in respect of the student concerned.

5. The appellant immediately objected to the principal’s instruction and there was an exchange of emails on 10 May in which he made his objection clear. Later that day, he again raised the matter at a scheduled staff meeting.

6. On 19 May, there was a meeting between the appellant, the principal and the deputy principal to discuss the issue.

7. On 27 May, the principal emailed the appellant. This correspondence concluded by recognising that while it may be challenging for him in light of his religious beliefs, the principal expected that the appellant would communicate with the student in accordance with the wishes of the student and the student’s parents. The appellant replied to this correspondence on 27 May stating, inter alia, that he had previously made his position clear at the meetings of 10 and 19 May.

8. On 21 June 2022, a service was held in the school chapel followed by a dinner in the school dining hall commemorating the 260th anniversary of the establishment of the School. The chapel service was attended by some past students, staff, Board of Management members, parents, clergy and some sixth-year students. Towards the end of the service the appellant stood up and spoke, setting out that he would not accept what he called “transgenderism” and putting it to the principal to withdraw her instruction of 9 May 2022. At a point during or immediately after the dinner, the appellant again raised the issue with the principal in public.

9. The School is of the view that the appellant acted wholly inappropriately in the timing and manner in which he raised his objection to the principal’s instruction. The appellant is of the view that he acted appropriately. I should say at this juncture that there is dispute between the parties as to the basis upon which disciplinary proceedings were instigated against the appellant and the issues likely to require determination by the DAP. Whilst the dispute in this latter regard falls to be considered in this Court (as it did in the court below), as correctly noted by the Judge, it is not the function of the court when hearing an interlocutory injunction application to determine the issues between the parties, much less make any assessment of the matters which will be the subject of the hearing of the appellant’s appeal to the DAP against his dismissal. For the purposes of the within appeal, the function of this Court is to assess whether the Judge was correct in determining that the appellant had not established a fair issue arose to be tried in respect of his claim of objective bias.

10. On 15 August 2022, the principal instigated Stage 4 of the applicable disciplinary procedures. The disciplinary process invoked against the appellant, and pursuant to which his appeal to the DAP is brought, is contained in “Revised Procedures for the Suspension and Dismissal of Teachers” pursuant to s. 24(3) of the Education Act, 1998 as provided for in DES Circular 0049/2018 (“the Circular”). There are four stages in the disciplinary process moving from informal stages to formal stages which may lead to disciplinary action up to and including dismissal. Disciplinary action may be commenced at Stage 4 if the alleged misconduct is considered to be serious enough albeit, even then, it does not have to be commenced at Stage 4. Stage 4 provides, inter alia, that “If…the work or conduct issue is of a serious nature a comprehensive report on the facts of the case will be prepared by the Principal and forwarded to the board of management. A copy will be given to the teacher.” Much turns, in this appeal, on the content of the report prepared by the principal for the Board of Management.

11. The general scheme of the procedures provided for in the Circular was considered by Butler J. in Lally v Board of Management of Rosmini Community School [2021] IEHC

633. With regard to the Stage 4 process, she observed: “Presumably, there must be some consideration given not only to the conduct involved but also to the circumstances in which it arose and the teacher’s history including any past disciplinary action, before a decision is made to start the process at the final stage”. (para. 50)

12. The disciplinary process provides for a right of appeal, expressed in the following terms in the Circular: “It will be open to the teacher to appeal against the proposed disciplinary action… In the case of a sanction being imposed under stage 4 of the procedure an appeal will be to a disciplinary appeal panel appointed by the board of management. The procedures for appealing are set out in Appendix 1A.”

13. Appendix 1A provides, inter alia, for the composition of the DAP and specifically states that “no member shall be appointed to the Panel to consider a case referred to the Panel who has had any prior interest in or dealings with that particular case.”

14. Appendix 1A also sets out the bases upon which a teacher may seek a review of disciplinary proceedings by the Panel, as follows: “i. The provisions of the agreed procedures were not adhered to. ii. All the relevant facts were not ascertained. iii. All the relevant facts were not considered or not considered in a reasonable manner. iv. The teacher concerned was not afforded a reasonable opportunity to answer the allegation. v. The teacher concerned could not be reasonably be expected to have understood that the behaviour alleged would attract disciplinary action vi. The sanction recommended is disproportionate to the underperformance or misconduct alleged.”

15. The Circular goes on to provide for the procedures that follow when a teacher seeks a review, and these procedures are set out at para. 44 of the High Court judgment.

16. The “quasi statutory status” of the Circular, compliance with which is mandatory “if a decision to dismiss is to be reached in a legally valid manner”, was recognised by Butler

J. in Dunne v. Board of Management of Little Angels Special School [2023] IEHC 312 (see para. 29).

17. Turning again to the disciplinary process invoked against the appellant, on 22 August 2022, he was suspended on full pay following a meeting of the Board of Management. Notwithstanding his suspension, he continued to attend at the School. The School then issued High Court proceedings against him on 30 August 2022 (Board of Management of Wilson’s Hospital School v. Burke (Record No. 2022/4507P)) ultimately securing injunctive relief restraining him from attending at the School. However, he persisted in doing so and was duly found to be in contempt of court and was imprisoned for contempt.

18. The next step in the disciplinary process was that the Board of Management proposed to hold the disciplinary meeting on 14 September 2022. Pursuant to the 2022/4507P proceedings, the appellant applied for an injunction to restrain the holding of that meeting. On the return date of the motion (11 September) the Board of Management gave an undertaking not to hold the meeting on 14 September and agreed that no such meeting would take place without three clear days’ notice to the appellant.

19. The School then wrote to the appellant on 22 December 2022 advising him that a disciplinary meeting would be held on 19 January 2023. The appellant duly sought an injunction restraining the holding of that meeting. That application was heard on 11 and

12 January 2023 and judgment was delivered by the High Court (Dignam J.) on 17 January 2023 ([2023] IEHC 22) refusing the application on the basis that whilst the appellant had made out a strong case (the applicable threshold given the nature of the relief sought), he was not entitled to relief from the court in circumstances where he had stated his intention to continue to breach earlier court orders and where the High Court had given him time to consider whether he would comply with those orders and he did not indicate that he would so comply. The appellant did not appeal against that decision.

20. The disciplinary meeting of the Board of Management went ahead on 19 January 2023 which the appellant attended at least for a period of time. On 20 January, the appellant was informed by letter that he was dismissed from his position in the School and he was advised of his right to appeal against the disciplinary action decided upon by the Board of Management.

21. The appellant duly appealed the decision of the Board of Management to the DAP on

2 February 2023. A hearing of the DAP was scheduled for 7 July 2023. On 20 June 2023, the appellant became aware that the members of the DAP were to be Mr. Seán Ó Longáin (Chair), Mr. Christie (union nominee) and Mr. Jack Cleary (management body representative).

22. By email of 30 June 2023 to the Department of Education, the appellant requested that Mr. Christie and Mr. Cleary not be members of the DAP. He stated: “Mr. Christie is a promotor of transgenderism in the ASTI, has awarded those who advance transgenderism in schools, and has worked closely with TENI (Transgender Equality Network Ireland) over many years. It is not appropriate that Mr. Christie be a panel member in this Appeal. I am also aware that Mr. Jack Cleary has been nominated to the appeal panel. Mr. Cleary is an Advisor with the JMB which advocates on behalf of TENI, works with TENI in promoting transgenderism in schools, and seeks to further the influence of TENI within the area of education. It is not appropriate that Mr. Cleary be a panel member in this Appeal. Please confirm as a matter of urgency that Mr. Christie and Mr. Cleary will not be members of the Appeal Panel and that those who are nominated to the Panel will not be activists for transgenderism.”

23. Ultimately, the appellant did not proceed with his objection to Mr. Cleary.

24. By letter of 4 July 2023, the Department of Education informed the appellant inter alia, as follows: “Having been appointed by the Board of Management of the school in accordance with the terms of Circular Letter 0049/2018, the panel is satisfied that the composition of the panel dealing with your appeal is correct and properly constituted. The panel, individually and collectively, are of the view that no conflicts of interest arise. The Disciplinary Appeal Panel will continue to undertake its work without fear or favour to any interest or party and within their remit under the terms set out in Circular Letter 0049/2018.”

25. In light of the refusal of the DAP to accede to the appellant’s request for Mr. Christie to recuse himself, the within proceedings were commenced by plenary summons on 6 July 2023 and on the same date the appellant issued a notice of motion seeking injunctive relief. Whilst not expressed as being interlocutory in nature, or to be sought pending the determination of the proceedings, the motion was duly (and properly) treated by the Judge as the appellant’s application for interlocutory injunctive relief.

26. The application came on for hearing before the High Court on 27 July 2023. It is common case that the respondents raised a preliminary objection to the application on the basis that the appellant was in ongoing contempt of court. The contempt relied upon by the respondents is set out at para. 26 of the judgment. The respondents argued that in those circumstances, the court should not even consider granting relief. In the alternative, they submitted that the balance of justice was against the granting of relief.

27. In submitting that the High Court should not even consider granting relief, the respondents relied on the approach taken by Birmingham P. (with whom Edwards and Whelan JJ. agreed) in Board of Management of Wilson’s Hospital School v. Burke [2023] IECA 52 at paras. 17 – 21.

28. The appellant’s position at the hearing was that there was no evidence that he was in ongoing contempt.

29. Whilst observing that it was long established that a court may decline even to entertain an application for relief by a person who continues to be in contempt of court, particularly where the relief that is sought are positive orders, ultimately, the Judge, in the exercise of his discretion, considered that it would be more appropriate to consider the question of the appellant’s contempt as part of the consideration of whether the balance of justice favoured the grant of relief rather than as precluding any consideration of his application for relief. As we shall see, the Judge did not get to the point of having to consider the balance of justice.

The High Court Judgment

30. Judgment was delivered on 20 December 2023. Almost immediately, the appellant entered into correspondence with the High Court expressing his dissatisfaction with aspects of the judgment. In particular, he took issue with the fact that the entirety of a particular section of the principal’s report under Stage 4 was not quoted at para. 105 of the judgment.

31. On 15 February 2024, the Judge published two judgments. The first was a short judgment which confirmed that the omission of the section of the principal’s report in issue was a clerical error. The second was a corrected version of the judgment of 20 December 2023, which included the full extract of the principal’s report. It is to this judgment that I now turn.

Objective bias

32. The legal principles relevant to a claim of objective bias are comprehensively set out at paras. 45 – 67 of the judgment and the Judge summarised those principles at para. 68. I reprise below those principles as summarised (with reference to the case law from which they derive):

• Objective bias is where there is a reasonable apprehension or suspicion that the decision-maker was or is biased (Orange Ltd v. Director of Telecoms (No. 2) [2000] IESC 22, [2000] 4 I.R. 159).

• The test is objective (Bula Ltd v. Tara Mines Ltd. (No. 6) [2004] 4 I.R. 412).

• The apprehension of bias is to be measured by the standard of the reasonable person and not according to the views of the parties or the court (O’Callaghan v. Mahon [2008] 2 I.R. 514).

• The reasonable person must be taken to be armed with all of the correct relevant facts and circumstances (O’Callaghan v. Mahon; Nurendale Ltd t/a Panda Waste Services v. Dublin City Council [2013] 3 I.R. 417).

• The reasonable person has various characteristics, including (but not limited

to) being fair-minded, not unduly sensitive or cynical, robust, aware that a standard for objective bias that is met if even a suspicion can be voiced could result in a near-impossible test which could be too easily invoked; they are not paranoid or prone to conspiracy theories but rather are capable of fine judgment; they must not be complacent and must appreciate the imperative that justice must be seen to be done but would not leap to the

conclusion that there may be bias. In fact, what these attributes add up to is a fair-balanced and objective person (Kelly v. Minister for Agriculture [2021] 2 I.R. 624, [2021] IESC 23; O’Callaghan v. Mahon; Helow v. Secretary of State for the Home Department and another (Scotland) [2008] UKHL 62, 1 WLR 2416).

• There must be a cogent and rational link between the grounds of alleged bias and the issue to be decided (O’Ceallaigh v. An Bord Altranais [2011] IESC 50). As put more recently by O’Donnell C.J. in Kelly v. University College Dublin [2025] IESC 6, at para.10, “There must be a cogent and rational link between the issue raised and its capacity to influence the

decision to be made.”

• The burden of proof is on the plaintiff (O’Callaghan v. Mahon).

33. The applicable legal principles were not the subject of any serious contest or disagreement at the hearing in the High Court, and in his submissions to this Court the appellant does not take issue with those principles. Indeed, in his oral submissions he accepted that apart from some difference in emphasis between them, there was no real controversy between the parties on the law. Rather, the appellant says, the controversy concerns “the factual issues”, namely, the parties’ different views on the link between the alleged objective bias relied on by the appellant and the issues to be decided by the DAP. This is a primary issue on the appeal, as we shall see.

The legal principles governing interlocutory injunctions

34. Paragraphs 69 – 85 of the judgment address the relevant legal principles relating to interlocutory injunctions. As noted by the Judge, the test for an interlocutory injunction application is contained in Campus Oil v. Minister for Industry and Energy (No. 2) [1983]

1 I.R. 88. The requisite test was recalibrated by the Supreme Court in Merck Sharp & Dohme Corp v. Clonmel Healthcare Ltd [2019] IESC 65 wherein O’Donnell J. (as he then was) set out an eight-step approach. As the Judge observed, this was not meant to be a prescriptive set of principles but rather to be viewed as a useful analytical framework or approach regarding the grant of interlocutory injunctive relief. In Merck, O’Donnell J. emphasised the overarching or inherent flexibility of the remedy the purpose of which is to serve the interests of justice.

35. In the court below, the Judge considered that his focus (bearing in mind O’Donnell J.’s suggested approach) was on (i) whether the appellant could secure a permanent injunction in the terms sought; (ii) the appropriate standard of proof or threshold test; (iii) whether that standard was met; and (iv) whether the balance of justice favoured the grant or refusal of the injunction sought.

36. As to the first issue, the Judge was satisfied that what was to be determined was whether the appellant was entitled to an interlocutory injunction restraining a hearing by the DAP of which Mr. Christie was a member. As a permanent injunction in those terms could be secured, he was satisfied that step one of O’Donnell J’s schematic in Merck Sharp & Dohme was met.

37. The injunction sought by the appellant was a prohibitory injunction. As such, the normal test is whether an applicant has established a fair, bona fide or serious question to be tried. This test has been described as a low bar. The Judge observed, however, that there was an additional element to the test in the context of an injunction to restrain an ongoing disciplinary process which, he said, arose from the courts’ reluctance to intervene in an incomplete disciplinary process. In this regard he cited, inter alia, Minnock v. Irish Casing Company Limited & Stewart [2007] 18 ELR 229, Rowland v. An Post [2017] 1 I.R. 355, Lally v. Board of Management of Rosmini Community School [2021] IEHC 633 and his own judgment in Board of Management of Wilson’s Hospital School v. Burke [2023] IEHC 22. As put by Clarke J. (as he then was) in Minnock, “the court will not intervene necessarily in the course of a disciplinary process unless a clear case has been made out that there is a serious risk that the process is sufficiently flawed and incapable of being cured, that it might cause irreparable harm to the plaintiff if the process is permitted to continue.”

38. The Judge was not certain that in the case of alleged objective bias, the additional element of the test added very much to the appellant’s burden. He stated: - “It seems to me that if an applicant establishes that there is a fair question to be tried that a member of the body which will be determining the case… is objectively biased then it must follow that they have made out a fair question taking into account the requirement to prove that the process has gone irremediably wrong. This is because a decision-making process which is tainted by objective bias and which nonetheless proceeds must be said to have gone irremediably wrong.” (para. 79)

39. It also seemed to the Judge, in the specific context here of an allegation of bias made in advance of the relevant hearing, that if the appellant established a fair question that there is bias “then he must be taken to have satisfied the additional burden of establishing that they have raised a fair question to be tried ‘taking into account the high standard by reference to which that question will be judged at the substantive hearing’”, the Judge there harking back to the dicta of Butler J. at para. 63 of Lally. In those circumstances, he considered that the court must assess a claim of objective bias “very carefully” “otherwise it would be too easy for the person who is the subject of the decision-making process to delay or derail the process.”. He noted the words of O’Donnell J. in Kelly v. The Minister for Agriculture that too high a test exacts a very high price in decisions set aside and outcomes delayed.

40. The Judge next addressed a different point raised by the respondents in relation to the standard to be applied. In their written submissions, they described the appellant’s characterisation of the fair issue or serious question standard as a “low threshold” as “simplistic and inapt in the present case”. The respondents’ submission was expressed as follows:

“[B]y its nature a claim of objective bias is concerned with the appearance of bias, rather than the probability of establishing it. Based upon the objective facts which are identified, [the appellant] must show that there is a cogent and rational cause for a reasonable observer to think that he will not receive a fair hearing. While the overall test to be met at interlocutory stage is somewhat lesser than that which may be required at a full trial, the legal exercise in assessing cogency and rationality remains a logically rigorous one at interlocutory stage.”

41. The respondents expanded on this argument in their oral submissions in the court below, essentially arguing that in a case of alleged objective bias, the applicant at the interlocutory stage had to establish a reasonable apprehension of bias. The respondents’ argument was that this was because the question was binary, the reasonable apprehension either existed or it did not.

42. Whilst the Judge found that there was “considerable force” to this argument, he noted that the approach which has been taken by the courts in objective bias cases to date has been to apply the traditional interlocutory injunction test (albeit in some cases with the additional Rowland element). In circumstances where the courts had previously proceeded on the basis of what had to be established was whether there was a fair or serious question to be tried concerning objective bias, the Judge proposed to adopt that traditional approach first “and only if necessary, i.e. if satisfied that Mr. Burke has met that test, will I determine whether I should approach it in the manner contended for by the defendants and, so whether Mr. Burke has satisfied the burden on him using that approach” (para. 84). Therefore, the standard the Judge applied throughout the judgment was whether the appellant had established a fair or serious question that a reasonable apprehension of bias existed.

The Judge’s treatment of the appellant’s objective bias claim

43. Having set out the relevant legal principles on objective bias and interlocutory injunctions and having clarified that he was approaching the matter from the perspective of a fair or serious issue to be tried, the Judge next turned to the claim of bias as advanced by the appellant and whether that gave rise to a fair or serious issue to be tried.

44. The Judge noted that the fundamental basis of the appellant’s claim of objective bias was that his appeal to the DAP concerns “transgenderism” and the profession and practice of religious beliefs and that Mr. Christie and/or the ASTI had publicly taken a position on “transgenderism” which was so contrary to the appellant’s position that Mr. Christie would be perceived as being biased, either personally or by association with the position of the ASTI.

45. In this regard, the Judge considered that the first matter which was required to be dealt with was the fundamental issue of what the DAP was being called on to decide. He considered two matters of relevance to this: first, the nature and scope of an appeal under the Circular, and secondly, precisely what issues have to be decided by the DAP.

46. As to the first of these (the nature and scope of the appeal), whilst the Judge found the language of the Circular “confusing”, he considered that what was provided for was in the nature of a review, but at the same time the appeal “is not limited strictly to a review”. This was because of some of the features of the scheme such as the provision for the taking of oral evidence by the DAP and that one of the grounds of review was that “all the relevant facts were not ascertained”. The Judge accepted that this latter provision allowed of the possibility for the appellant teacher to establish facts at the appeal which it is claimed were not ascertained by the relevant board of management.

47. As to the second matter (the issues to be decided by the DAP), the Judge noted that the appellant maintained that he was dismissed because of his objection to the principal’s instruction to all staff to address the student by a new name and the “they” pronoun, and for holding and expressing his religious beliefs.

48. In the Judge’s view, however, what the appeal was about had to be assessed “objectively”. In this regard, he looked to the letter by which the Board of Management communicated its decision to dismiss the appellant. He was satisfied that the reason given for the dismissal was that the “conduct issues outlined in the Principal’s report amount to serious misconduct” on the appellant’s part. It was thus necessary to look to the principal’s report.

49. The Judge noted that the report was in three sections, “Chronology of events”, “Mr. Burke’s behaviour” and “Conclusion”. The section “Chronology of events” contained two sub-headings, “1. 9th May to 20th June 2022” and “2. 21st June 2022”, in which matters that were alleged to have happened between or on those dates were set out.

50. At para. 105 of the judgment, for the purposes of ascertaining the nature of the allegations made against the appellant, the Judge set out in full those portions of the report entitled “Mr. Burke’s behaviour” and “Conclusions”. For the purposes of the within appeal, it is equally apposite to set out those sections in their entirety.

“II Mr Burke's behaviour

There are two aspects to Mr. Burke's behaviour: first, the manner in which he has expressed his objection to the direction to staff regarding the social transitioning of a student and second, concerns around the public statement of his refusal to accept transgenderism and the potential impact this may have for this particular student and the student body.

(i) Mr Burke's objection to the direction to staff regarding the social transitioning of a student Mr Burke has treated the decision to accommodate the social transition of a student as a personal decision of mine rather than as a decision of the school. In view of this, his objections have been very personally directed at me rather than the school. In addition, Mr Burke has chosen quite deliberately to articulate his objections in public rather than in private, while ignoring all established norms and procedures for addressing concerns of teachers in voluntary secondary schools. Mr Burke interrupted a staff meeting at the beginning of the meeting and persisted in questioning me and the Chaplain, even when he was advised that it was not the place to do so and where I had offered to meet with him to discuss the matter. Staff meetings may on occasion become heated when issues are discussed on which staff have opposing views. In my years as Principal and as a teacher, however, I have never experienced a staff meeting where a teacher has sought to hijack a meeting to pursue an issue in such a disrespectful manner. Regardless of the personal views held by any teacher, it is inappropriate to interrupt a staff meeting in the manner in which Mr Burke did. At the very least, however, that interruption and challenge took place in the confines of the staffroom and was limited to the teaching staff present. The interruptions at the Chapel and the dinner were made very much in public and were highly personal to and disrespectful of me.

Mr Burke interrupted Bishop Glenfield during a public Church service, which was attended by the stakeholders of the school. His outburst was directed at me personally in front of current students and staff and other members of the school community. It was upsetting and embarrassing for everyone present. The students who were present in the Chapel were visibly upset by his remarks and left the service, refusing to come back into the Chapel. The students present were in the middle of sitting their Leaving Certificate exams and did not need such a distraction at a critical time in their education. Although Bishop Glenfield was able to bring the service to a close, Mr Burke's interruption tarnished what was supposed to be a celebration to mark the end of the 260th school year.

Once again, after the dinner, Mr Burke challenged me about the issue in front of members of the wider school community. He was agitated and followed me around the room as I tried to move away from him. It was completely inappropriate for Mr Burke to address me in such a manner, once again in a public place.

It is unacceptable for any member of the teaching staff to challenge management in a public setting as Mr Burke did. His outburst in the Chapel resulted in what should have been a private in-school matter entering the public sphere. The very public manner of his outburst meant that it has spread invariably beyond those present into the wider school community and may even have found its way back to the student concerned. This is most concerning.

(ii) Concerns around Mr Burke's public statement of his refusal to accept transgenderism The second aspect of Mr Burke's behaviour relates directly to child welfare. Mr Burke confirmed that he does not accept transgenderism very publicly in the Chapel in front of the students and staff and other school stakeholders. This has implications not only for the particular student, but other students who may wish to transition in the future and, indeed, the entire student body. Mr Burke's position runs counter to the Code of Professional Conduct for Teachers issued by the Teaching Council, which sets out the standards that are expected of all registered teachers regardless of their position. Section 1 addresses professional values and relationships as follows ‘1. Professional Values and Relationships Teachers should:

1.1 be caring, fair and committed to the best interests of the pupils/student entrusted to their care, and seek to motivate, inspire and celebrate effort and success.

1.2 acknowledge and respect the uniqueness, individuality and specific needs of pupils/students and promote their holistic development.

1.3 be committed to equality and inclusion and to respecting and

accommodating diversity including those differences arising from gender, civil status, family status, sexual orientation, religion, age, disability, race, ethnicity, membership of the traveller community and socio-economic status, and any further grounds as may be referred in equality legislation in the future.

1.4 seek to develop positive relationships with pupils/students, colleagues, parents, school management and others in the school community, that are characterised by professional integrity and judgment.

1.5 work to establish and maintain a culture of mutual trust and respect in their schools.’ The Code of Professional Conduct for Teachers recognises the important role that teachers play in the social and personal development of the students in their care beyond teaching. The "demand" communicated to staff in my email of 9th May 2022 was entirely in keeping with the Code of Professional Conduct for Teachers and was entirely consistent with its expectation of a commitment to inclusion and the accommodation of diversity. In addition, it was in keeping with the ethos of the school. As such, it was a reasonable and legitimate instruction to staff.

III Conclusion

CL 0049/2018 provides that, although disciplinary action will normally follow the progressive stages, the procedure may be commenced ‘at any stage of the process if the alleged misconduct warrants such an approach’. I have invoked stage 4 of the disciplinary procedures due to the fact that, in my opinion, Mr Burke's behaviour, as alleged, may amount to gross misconduct. In challenging a legitimate instruction of the principal, Mr Burke has acted in an inappropriate and unacceptable manner. He has shown total disregard for school management not only in front of his colleagues, but also in front of students and the members of the wider school community. It is not acceptable for a teacher to seek to challenge a school policy in such a public manner, regardless of the subject matter of the policy. Teachers are role models to students. Had a student interrupted a public school event in a similar manner that student would undoubtedly have been subjected to disciplinary action.

Whereas Mr. Burke contends that my actions as principal in this matter run counter to the ethos of our school, I would contend that Mr. Burke's public statement regarding his non-acceptance of transgenderism is not in keeping with the ethos of the school or the expected standards of teachers, as set out in the Code of Professional Conduct for Teachers. Schools are supposed to be safe places for students who should be able to rely on teachers to look out for, and act in, their best interests. While their children are at school, parents entrust their children to the care of teachers and other staff at the school who act in loco parentis to those students. It is well established that schools have a legal duty of care to students who are in their care. This duty of care applies to students on both a collective and an individual basis. I have serious concerns about how Mr. Burke may act in the school in future in circumstances where he has stated his personal views on transgenderism in school and at a public event after the school term had ended. These concerns extend to the student concerned and the entire student body”. (Emphasis in bold in original)

51. It will be recalled that the appellant’s argument in the Court below (and indeed in this Court) is that he was dismissed because of his objection to the principal’s instruction to all staff to address the student in question by a new name and to use the “they” pronoun, and for the expression of his religious beliefs.

52. At para. 106, the Judge found “simply no basis” in the evidence at this stage to conclude that the appellant had establish a serious question either that he was dismissed for his objection to the principal’s instruction or expressing his religious beliefs or that a reasonable person having knowledge of the relevant facts, including the Board of Management’s letter, the principal’s report, and the grounds of appeal, would apprehend that he was dismissed for those reasons. The Judge went onto state: “On the state of the evidence and the facts at this stage, a reasonable person reading the principal's Report could only conclude that the “conduct issues” in the report (which were the stated grounds for his dismissal) were the fora, timing and manner in which Mr. Burke raised his objections to the principal's instructions and not the fact that he objected to the instruction, or that he held certain religious beliefs, or even that he expressed his views.”

53. The Judge noted that this was also reflected at para. 45 of the judgment of Edwards

J. in Board of Management of Wilson’s Hospital School v. Burke [2023] IECA 52 where it was held that “the gravamen of the complaint received by the Board of Management, and the ostensible basis for the decision to put [the appellant] on administrative leave, was that he had misconducted himself in how he had sought to ventilate and publicise his grievance, doing so at times and places and in a manner that was considered inappropriate and disruptive and inimical to the orderly running of the school.”

54. The Judge went onto say, at para. 107, that the contemporaneous documentation would also lead the reasonable person to understand that the “conduct issues” related to the appellant’s behaviour, and not the fact that he objected to the instruction, that he held certain views, or that he expressed them. Whilst the Judge accepted that the conduct in question may have been motivated by the appellant’s religious belief, he considered that there was no fair question that a reasonable person would apprehend that he was dismissed for holding a religious belief, for refusing to follow an instruction due to his religious beliefs, for objecting to the principal’s instruction or even for objecting to use a different pronoun or a different name. In the view of the Judge, “at this stage, the evidence is entirely to the contrary”. He stated: “an appellant can not self-define what the decision being appealed against and, therefore the appeal itself are about”, which must be assessed “objectively”.

55. In considering what fell to be decided by the DAP, at paras. 112 - 117 the Judge summarised the grounds of review relied upon by the appellant in his appeal. At para. 113, he considered that it would be “immediately apparent to the reasonable person” that the grounds relied upon “are overwhelmingly concerned with procedural … matters.” At para. 114, he stated that a reasonable person considering the grounds of appeal would understand that three points about the appellant’s religious beliefs, the use of a different pronoun and the principal’s instruction and “transgenderism” are contained in the grounds of appeal, namely: -

I. The principal’s demand was, according to the appellant, wholly unlawful, unconstitutional and contrary to the ethos of the School thereby justifying the appellant’s objection (privately and publicly) to the principal’s instruction.

II. There was no acknowledgement in the principal’s report of the appellant’s constitutional rights, including his right to equality, freedom of expression, freedom of conscience and freedom of religion.

III. The principal initiated disciplinary proceedings against the appellant on the basis of (a) his objection to the principal’s demand and (b) his expression of his religious belief as regards “transgenderism”. The Judge noted that in conducting a proportionality analysis in respect of the sanction of dismissal the DAP may have to consider that the appellant was motivated by his religious beliefs.

56. In the view of the Judge, none of the foregoing factors required a decision on the rights or wrongs of “transgenderism” or the principal’s instruction and the appellant’s objection to it, or whether a student should or should not be referred to by a different pronoun or whether a teacher can or should be required or compelled to use a different pronoun, particularly where that is contrary to his religious beliefs, or whether “holding and expressing the Christian belief on male and female amounts to gross misconduct”.

57. Taking each of the points he considered arose from the appellant’s grounds of appeal, the Judge considered that the issue to be decided in relation to the first was whether, even assuming the principal’s instruction was unlawful or unconstitutional and contrary to the ethos of the school, the appellant was entitled (or indeed under a duty) to raise his objection in the places and at the times and in the manner in which he is alleged to have done. In relation to the second point, he considered this a purely procedural question of whether the principal had treated certain matters properly in her report. He considered the core of the third ground related to the question of the basis upon which the principal initiated disciplinary proceedings against the appellant which was “a purely factual matter”. He went onto state: - “Thus, I am not satisfied that a fair or serious question has been established that a reasonable person would apprehend that the issue(s) which Mr. Burke believes are at the heart of the appeal (i.e. transgenderism and the profession and practice of religious beliefs) are actually the core issues or are the issues to be decided. This, of course, has consequences for whether there is a cogent and rational link between the grounds of alleged bias and the issues to be decided ….” (para. 117)

58. Before going on to address whether there was a cogent and rational link between the grounds of alleged bias and the issues to be decided by the DAP, the Judge turned to what it was the appellant maintained gave rise to an apprehension of bias. He noted that there were two aspects to the appellant’s claim. First, that Mr. Christie personally would be perceived as biased and, secondly, he would be perceived as biased because as General Secretary of the ASTI he would be associated with the position held by the ASTI on matters which the appellant contends are at the core of his appeal against his dismissal.

59. The claim that a reasonable person would apprehend that Mr. Christie personally was objectively biased was because Mr. Christie, the appellant said, had promoted or advanced transgenderism in schools by presenting an ASTI achievement award to a teacher in Cork who had helped a group of students to establish a sexuality and gender acceptance group in their school, and had worked closely with Transgender Equality Network Ireland (“TENI”) over many years. The Judge found the only evidence of Mr. Christie working with TENI was contained in Mr. Christie’s own affidavit where he volunteered that he met a representative of TENI once only, in 2016. In the view of the Judge, that would not cause the reasonable person to consider that Mr. Christie had a close working relationship with TENI over many years. In relation to the award made to the teacher, the Judge considered that a reasonable observer would readily appreciate that Mr. Christie was acting in his capacity as General Secretary in presenting the award. Overall, he found no basis upon which a reasonable person would have an apprehension that Mr. Christie personally was a promoter of or activist for what the appellant alleges to be transgenderism within or without the ASTI.

60. At paras. 124 - 125, the Judge found that there was no evidential basis for the appellant’s fundamental factual assertion that Mr. Christie was a promoter of, or activist for, “transgenderism”, noting that the appellant’s continued reference to the ideology of “transgenderism” was not well defined and was “problematic”. In this regard, he observed that the Gender Recognition Act, 2015 recognised that a person’s gender may not be the same as their biological sex. Thus, the ideology of “transgenderism”, as the appellant styled it, was a recognised part of the law of the State. In the view of the Judge, Mr. Christie’s acceptance that this is the case, or his preparedness to apply a different pronoun to an individual in a given situation, did not make him a promoter of “transgenderism”. Therefore, he was not satisfied that the appellant had established that there was a reasonable apprehension that Mr. Christie would not decide the appeal impartially.

61. The Judge next turned to the appellant’s contention that as General Secretary of the ASTI, Mr. Christie was “publicly associated with the aforementioned views on transgenderism and specifically in relation to the Plaintiff’s case”. Having reviewed the relevant case law (O’Ceallaigh v. An Bord Altranais, Bula Ltd. v. Tara Mines Ltd. (No. 6), and Helow v. Secretary of State for the Home Department and another (Scotland) [2008] UKHL 62), the Judge was satisfied that “it is clear from these authorities that mere subscription to or membership of an association is not sufficient to be imputed or ascribed with the views or positions of the association. Something else is required” (para. 134).

62. As the Judge observed, however, the court was not dealing with a mere member of the ASTI but rather its General Secretary. Hence, it was “difficult, if not impossible, to see, how a reasonable person would not, at least to some extent, associate the head of the organisation with the views or positions taken by the organisation…A general secretary is in a very different position to an ordinary member, or possibly even a member of the executive body, of an organisation…The general secretary is the leader or head of the organisation and in many respects is the public and representative face of the organisation and it seems to me is likely to be ascribed with the views of the organisation when acting in his capacity as General Secretary” (para. 135). It was, however, also the case that a reasonable person would know that it did not necessarily follow that Mr. Christie personally held or shared the same views as the organisation he heads (although there was no evidence that Mr. Christie disagreed with any relevant view or position of the ASTI).

63. Whilst the Judge recognised that Mr. Christie when serving on the DAP does not do so in his capacity as General Secretary of the ASTI but rather sits as the ASTI’s nominee, and whilst holding that a reasonable person would not ascribe the views of an organisation such as a union to the leader of the union personally in his private life, nevertheless it seemed to the Judge that “it would be artificial to describe Mr. Christie’s role on the appeal panel as purely personal, or, more particularly, it would be artificial to believe that the reasonable observer would see Mr. Christie’s role as purely personal and separate or removed from his role as General Secretary. The Appeal is very much in the educational field, which is the area of operation of the union of which he is head, and, it seems to me, within the field which a reasonable person would, at least to a certain extent, associate him with the views or positions of the organisation” (para. 139). Thus, the Judge was satisfied that there was “a serious question that a reasonable, informed observer would associate Mr. Christie with the views or positions of the union in the context of participation in an Appeal Panel.” Notably, there is no cross-appeal from this finding.

64. What then were the views, actions and position of the ASTI that led, in the appellant’s view, to a reasonable apprehension of bias on the part of Mr. Christie by association? At para. 141 of the judgment, the Judge describes the essence of the claim as the appellant saying that the ASTI has unequivocally advised schools to accept and use transgender pronouns, which is contrary to the appellant’s position, and has publicly fostered and advanced that approach since 2016, and in particular in public comments in direct response to the appellant’s case, and that this approach is so contrary to his position on the issues which he claims his appeal to the DAP is about that there is a reasonable apprehension that he would not get a fair hearing.

65. As referred to already, the first of the four bases identified by the appellant as evidencing a reasonable apprehension of bias was the presentation by the ASTI of an award to a teacher who helped students to establish a sexuality and gender acceptance group in the teacher’s school.

66. The second was the ASTI had “unequivocally advised schools to accept and use transgender pronouns”. In this regard the appellant placed reliance on public comments by Mr. de Paor the Deputy General Secretary of the ASTI in a newspaper article which appeared in the Irish and Sunday Independent newspapers on 11 September 2022. The subheading on the article was “ASTI advises schools to use the pronouns that students request to be addressed by, but not everyone agrees”. It is common case that the appellant’s name featured twice in the article. Insofar as the article dealt with the ASTI, it was reported that “The Association of Secondary Teacher’s Ireland (ASTI), which represents more than 18,000 secondary teachers, said it generally advises schools to use the pronouns students request to be addressed by.” The following comments were attributed to Mr. de Paor: “We don’t have a written policy, but certainly we would advise schools to use the pronoun that a child wishes to be used, and that’s generally what happens. There can be difficulties where the child says one thing and the parents say something else. We would generally encourage the parent to support the child.”

67. The third basis upon which the appellant claimed objective bias was alleged close links between the ASTI and TENI, evidenced, the appellant said, by the fact that Mr. de Paor (the most senior member of the ASTI’s Equality Committee) sits on TENI’s Education Advisory Group, and that TENI had delivered a talk at the ASTI event in 2016 which had been reported favourably in the union newsletter.

68. The fourth basis for the appellant’s claim of objective bias was that the ASTI was a member of the Children’s Rights Alliance (“CRA”), and that in February 2018 the CRA had made a submission to the Review Group for the Gender Recognition Act, 2015 that the Act should be amended to allow children under sixteen to change their gender without parental consent.

69. The Judge considered the core of the appellant’s case was that “the ASTI has taken a public position on matters at the heart of his appeal and a reasonable observer would therefore have a reasonable apprehension that Mr. Christie would not determine the appeal impartially or fairly, or would be perceived as having pre-judged the issues to be decided” (para. 164).

70. The Judge’s consideration of this core argument was addressed at paras. 165 - 166 of the judgment: - “165. However, a fundamental flaw in Mr. Burke's case is that objectively, on a proper consideration of the dismissal letter, the principal's report and the grounds of appeal, there is not a fair question that the Appeals Panel has to decide any issue in respect of which it is claimed the ASTI has taken a position. As discussed above, on the evidence at this stage, objectively (i) the decision to dismiss Mr. Burke was on foot of those conduct issues set out in the principal's report and those conduct issues were the fora, timing and manner in which Mr. Burke raised his objections to the principal's instruction; (ii) Mr. Burke's appeal is overwhelmingly concerned with procedural matters (as set out above); (iii) the grounds of appeal concerning his religious beliefs and his constitutional rights do not require any

decision on the rights or wrongs of his or the school's views on whether or not a student should be referred to by 'they' or on whether a teacher can be instructed to refer to a student by a pronoun of the student's choosing - as noted above, in light of the contents of the grounds of appeal, the Appeals Panel will have to decide whether, assuming that the principal's instruction was unlawful, unconstitutional and contrary to the ethos of the school, Mr. Burke was entitled (or under a duty) to raise his objections in the places and manner in which he did, (iv) whether the principal properly considered Mr. Burke's claimed constitutional rights in her report; and (v) whether, as a matter of fact, the disciplinary proceedings were initiated on the basis of his objection to the principal's instruction and on the basis of Mr. Burke's expression of his religious beliefs.

166. There is therefore simply no cogent and rational link between the basis of the alleged objective bias, i.e. the ASTI's position on what Mr. Burke terms "transgenderism", and what has to be decided in the appeal which would cause the reasonable person who was armed with knowledge of all the circumstances and of the disciplinary process, including the appeal, to have a reasonable apprehension of bias. Thus, even if the ASTI's position is or would be perceived by the reasonable observer in any of the ways described by Mr. Burke, objectively there is no cogent link between that position and the issues to actually be decided in the appeal. Conversely, this is the case even if the Appeals Panel has to consider whether the principal's instruction was unlawful, unconstitutional or contrary to the ethos of the school because the ASTI has not taken any position on those questions.”

71. Thus, the absence of a cogent or rational link between the ASTI’s position and what (in the Judge’s view) fell to be decided in the appeal was “fatal” to the appellant’s case. As the Judge put it: - “If there is no cogent or rational link between the association or the alleged ground of bias or serious question of such a link then there can be no serious question that a reasonable person would have an apprehension of bias.” (para. 167)

72. The appellant takes issue with the above findings.

73. At para. 168. the Judge went onto state that even if he was wrong with regard to the conclusions set out at paras. 166 - 167, or, alternatively, if the fact that “transgenderism” and the holding and expression of religious beliefs were a sufficient part of the overall context to establish a cogent and rational link, he was nevertheless not satisfied there was a serious question that the facts relied upon by the appellant, when taken together with all of the other relevant facts, would cause the reasonable person to have an apprehension that Mr. Christie has prejudged the appeal and would not decide the appeal impartially, or that there was a real possibility that he would not do so.

74. According to the Judge, the authorities (O’Callaghan v. Mahon, Helow and Lally) were clear that the mere fact of holding a different opinion or position to that of the person the subject of a decision is not sufficient to ground a claim of objective bias. In the Judge’s view, “[t]he reasonable person will be aware that people hold different views, opinions and positions and will know that the mere fact of holding a different view, opinion or position does not necessarily mean that a decision-maker will not adjudicate fairly”.

75. Returning to the four bases upon which the appellant claimed a reasonable apprehension of bias existed, the Judge was of the view that whilst “when some individual facts are taken in isolation or with some other facts there is a possibility that the reasonable person would have a reasonable apprehension of objective bias” his assessment of those bases had to be determined by reference to all the facts taken together “because that is the approach that the reasonable person with the attributes described above would take”.

76. On the issue of Mr. Christie’s presentation of the award to the teacher, whilst the Judge considered that a reasonable person would believe that in deciding to present an award to the teacher the ASTI either approved of or at least did not disapprove of the group the teacher helped establish, that was to take “a somewhat superficial view of matters”. In the view of the Judge, “[a]pproval of a group which offers support to LGBTQI+ students or which facilitates them meeting in a safe space…is a far cry from the reasonable person concluding that the ASTI might be concluding that the ASTI is a promoter of transgenderism or as having a radical activist strategy”. It was also “a far cry from giving rise to an objectively reasonable apprehension that the ASTI has a sufficiently strong view on transgender issues that Mr. Christie might have difficulty deciding [the appellant’s] appeal fairly even if the appeal did concern such issues either as part of the context or because my assessment of the issues which fall to be decided in the appeal is wrong” (para. 174). In circumstances where via the Gender Recognition Act, 2015 the State recognises different sexualities and gender transition, “there is simply no objective basis for saying that the presentation of an award to a teacher who helped establish a group to support persons who may have a different sexuality or a different gender to their biological sex…could give rise to a reasonable apprehension of bias.” Whilst the Judge accepted that the presentation of the award at the end of the school year in which the appellant’s case was live was a relevant factor, a reasonable person would know that another award was presented at that time and five others were presented from May 2022.

77. As regards the public comments of Mr. de Paor as reported in the Sunday Independent, it will be recalled that the appellant’s argument was that Mr. de Paor’s comments showed that the ASTI held a different position to that of the appellant and that the comments made were in direct response to his case. As to the first limb of the appellant’s argument, the Judge’s view was that the mere fact of having a different position was not sufficient. Something more was required. Insofar as it was claimed that Mr. de Paor’s comments were in response to the appellant’s case, the Judge opined that it was correct that the article was published “around the same time” as the reporting of the appellant’s case and that a reasonable person would readily conclude that that was probably why the journalist wrote the article. However, the Judge found no objective evidential basis that Mr. de Paor’s comments were a direct response by him or the ASTI to the appellant’s case “and certainly no objective basis for concluding that it was a ‘calculated and definitive condemnation of him’ or a ‘deliberate and highly significant intervention by the ASTI’” (as the appellant had argued).

78. The Judge considered that that the correct facts, when the article was read in full, as the reasonable person was expected to do, was that neither of the references to the appellant’s name were by Mr. de Paor. As the Judge earlier observed “[n]one of Mr. de Paor’s comments were directed to what should happen in [the appellant’s] case.” He was of the view that whilst it was not clear from the article whether Mr. de Paor was speaking in a formal capacity as Deputy General Secretary on the part of the ASTI, a reasonable person would understand that Mr. de Paor was speaking on behalf of the ASTI. He noted, however, that the evidence was that the ASTI had no formal or written policy relating to transgender students.

79. In the court below, the appellant had described the substance of Mr. de Paor’s comments as the ASTI coming out forcefully against his position and that the ASTI’s position “had the effect of a directive which the ASTI expected would be uniformly obeyed by schools and teachers without exception.” The Judge considered this “an entirely subjective view” and not based on a reasonable assessment of all the facts. Addressing the appellant’s contention that Mr. de Paor’s statement that “certainly” the ASTI would advise schools to use a student’s requested pronoun should be understood as advice from the ASTI that was focused and formal, the Judge considered that submission “an entirely oversensitive reading of the article” when all of the other facts were taken into account including that the ASTI had no written or formal policy on transgenderism.

80. In the view of the Judge, the reasonable person would know that the ASTI had no formal policy or position on transgender issues or the use of names or pronouns and would therefore understand that the advice being referred to as being general in nature and representing no more than the general position. At para. 184, he went on to say: “All of that being said, it is clearly the case that the ASTI has taken the position that students should generally be referred to by the pronoun of their choice and to that extent they differ from the position taken by Mr. Burke. That in itself is not sufficient to ground a serious question that there is a reasonable apprehension of bias where it is clearly not a formal position or policy adopted following a consideration of the types of issues which Mr. Burke has raised following the principal’s instruction.”

81. Addressing the third basis for the appellant’s claim of bias - the alleged close links between the ASTI and TENI - the Judge found the only link of which there was evidence was Mr. de Paor’s membership of TENI’s Advisory Group and noted that, in that regard, Mr. de Paor had only attended two or three meetings, the last of which was three years prior, facts which the reasonable observer must be taken as knowing. Moreover, the reasonable person would also know that membership of or representation on a committee did not in itself amount to an indorsement of or identification with each and every position adopted by that organisation, again a fact which would be known to the reasonable person. The Judge noted that the ASTI had a relationship with the General Synod (Church of Ireland) Board of Education. Thus, in relation to the appellant’s own case in relation to the tenets of the Church of Ireland, by having a representative on both the TENI Advisory Group and the Church of Ireland (General Synod) Board of Education, it might be said that the ASTI was “indorsing two inconsistent positions”. It seemed to the Judge, however, to be beyond doubt that a reasonable person, in the absence of some other evidence, would understand the ASTI to be indorsing neither organisation.

82. The Judge was also of the opinion that the mere fact that a TENI representative spoke at an ASTI event in 2016 did not raise a serious question that a reasonable person would believe that that constituted a close relationship between the organisations, noting that the talk given by TENI was one of four talks given at the meeting relating to different topics. He noted that the favourable comments as reported in the ASTI magazine were given by attendees and were not editorial comments. It could not therefore be suggested that reporting on the comments of others constituted objective bias absent evidence that the reportage was significantly and materially inaccurate.

83. As to the fourth basis upon which objective bias was claimed, the Judge was of the view that neither the ASTI’s membership of the CRA nor the CRA’s submission to the Review Group under the Gender Recognition Group separately or collectively when taken together with the other facts which the reasonable person must be taken to know gave rise to a fair question of a reasonable apprehension of bias. The evidence was that the ASTI had not participated in the discussion or consultation around the submission (although the Judge noted that the appellant disputed this). The question then was whether the ASTI’s membership of the CRA was sufficient to raise a serious question that it would be ascribed with the views set out in the submission. The Judge was satisfied, having regard to Locabail, Helow and Kelly, that the mere fact of membership of an association did not in itself fix the member with ownership of the views of the organisation. This was particularly so when one considered the range of organisations which were members of the CRA. Given that range, there was no basis upon which the reasonable person would ascribe all views and positions taken by the CRA to each and every one of the member bodies.

84. Ultimately, the Judge was of the view that whilst the ASTI undoubtedly had taken the general position of advising schools to refer to students by their preferred pronoun and accepted that a person’s gender may not align with their biological sex, the reasonable person armed with the facts would know that the ASTI did not have a formal policy or position on transgenderism, and would know that the ASTI had not adopted any position in relation to the appellant’s own case and had not expressed any such position. That, the Judge opined, was “a long, long way from being a promoter of transgenderism or a radical campaigning organisation as those phrases would be understood by the reasonable person.” Whilst the ASTI’s acceptance of the legal position in the State and its willingness to refer to students by their chosen pronouns was different to the appellant’s, “that is not in itself sufficient to establish a fair question that the ASTI holds such a strong opinion or position that there would be a reasonable apprehension that there is a real possibility that Mr. Christie would not decide the case fairly.”

85. The Judge was further satisfied that the reasonable person would take account of the fact that the ASTI had negotiated for the inclusion of an independent appeals process in the disciplinary procedures and that the inclusion of a teaching union nominee on a disciplinary panel was to ensure the inclusion of the teacher’s perspective in the process and to ensure that teachers are treated fairly in the decision-making process. He considered that what the appellant’s claim amounted to was that the ASTI had such a strong view on the question of whether a student should be referred by their chosen pronoun that ASTI’s nominee on the DAP would disregard the purpose for which he was nominated “and would decide the appeal on the basis of this position and not on the merits.” The Judge did not believe that the reasonable person would have a reasonable apprehension that that would occur.

86. Accordingly, by reason of his findings, the Judge was not satisfied that the appellant had discharged the burden on him of establishing that there was a fair question of a reasonable apprehension of bias even having regard to the fact that the fair question test was a low bar.

87. As the appellant had not surmounted the fair question to be tried test, it was not necessary for the Judge to consider the application of the alternative approach suggested by the respondents to that test. Nor was it necessary to embark on a consideration of the balance of justice.

The Appeal

88. As can be seen, in the court below the appellant advanced four factual bases in support of his claim of objective bias, namely (i) an award made by the ASTI to a teacher,

(ii) the comments made by Mr. de Paor in the Sunday Independent article of 11 September 2022, (iii) the ASTI’s links with TENI and (iv) a submission made to a Review Group for the Gender Recognition Act, 2015 by the CRA of which the ASTI is a member.

89. The appellant’s written and oral submissions to this Court, however, are centred on the Judge’s findings as regards (ii) and (iv). Therefore, in the context of the bases advanced for the alleged objective bias regarding Mr. Christie, it is the factual matrices underlying

(ii) and (iv) that fall to be considered by this Court in considering the appellant’s claim of objective bias, and to which the relevant legal principles regarding objective bias must be applied.

90. The appellant advances six grounds of appeal in his notice of appeal. These are essentially reprised in his written and oral submissions under the following themes:

(1) The bases for the objective bias regarding Mr. Christie. The appellant places a high premium on the ASTI’s position on the use of a student’s preferred pronoun, as reported in the Sunday Independent article, and what he describes as the “radical” nature of its statement. He further relies on the ASTI’s membership of the CRA.

(2) The basis for the disciplinary action against the appellant and the reasons for his dismissal. In this regard, the appellant contends that the substance of his objection to the principal’s instruction, namely that he could not accept transgenderism, was a factor in his dismissal. He contends that there is a real concern that the Judge did not acknowledge what the principal’s report stated were the reasons for his dismissal. The appellant is therefore strongly critical of the finding that there was no cogent link between the bias he alleges and the issues to be decided by the DAP.

(3) The legitimacy of the principal’s instruction. The appellant contends that this is an issue to be considered by the DAP.

(4) The nature and scope of an appeal under the Circular which, the appellant says, involves a consideration of the merits. These are the factors which the appellant says underpin his claim of a reasonable apprehension of bias by reason of Mr. Christie’s participation in the DAP.

Discussion and Decision

91. In order to frame the particular issues that arise on this appeal it is helpful to briefly rehearse the relevant legal principles pertaining to a claim of objective bias. As is well established, the standard as to the approach to be taken by a court on the issue of a reasonable apprehension of bias is that of the objective person. That person is not an unduly suspicious person, rather it is someone who directs their mind properly to the facts and who is not overly sensitive in the context in which the issue arises. The reasonable observer is fair-minded but robust in their analysis. The test that is required is not a test that is set up in such a way as to banish every possible suspicion.

92. In the case law much focus has been placed on the question of the identification of a cogent and rational link between the stated cause of a concern giving rise to a reasonable apprehension of objective bias and the actual issue that arises for determination. In the present case, the parties hold entirely opposing views on whether the requisite link or links exist.

93. In O’Ceallaigh v. Bord Altranais, Fennelly J. cited the dicta of Denham J. (as she then was) in Bula that in assessing objective bias the “links must be cogent and rational”. Fennelly J.’s own phraseology was that “there must be a real and not a mere hypothetical or a speculative link between the association under consideration and the apprehension of lack of impartiality being alleged” (para. 39). At para. 41, he emphasised the two-step analysis identified in the Australian case of Ebner v. Official Trustee in Bankruptcy (2000)

75 ALJR 277: -

“The apprehension of bias principle admits of the possibility of human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge [or a decision-maker] to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge [or decision-maker] has an ‘interest in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.”

94. Insofar as prejudgment bias is alleged (as is the case here), in O’Callaghan v. Mahon, Fennelly J. opined on this issue, at paras. 550 - 551, in the following terms: - “It seems to me that the most relevant decision of this court on the issue of prejudgment bias is that in Dublin Wellwoman Centre, though it was not, in fact, expressly considered under that heading. There it was held that the learned High Court Judge should have discharged herself from hearing the case. Denham J delivered the unanimous judgment of this court on the appeal. That case was concerned a submission made by the judge to government completely outside the judicial process. The plaintiffs, who were engaged in the provision of non-directive counselling to pregnant women, brought an action seeking a declaration that they were entitled to make information available regarding the availability of abortion services in other member states of the European Community. That contention was contested by the appellants. The disputed issue involved an interpretation of Article 40.3.3˚ of the Constitution. The trial judge had written, in her capacity as chairperson of the Commission on the Status of Women, a letter to the Taoiseach in which, as summarised by Denham J she had ‘voiced a view on the constitutional Article in question.’ The judgment stressed the particular importance and relevance of the case and that it involved one of ‘the most emotive and divisive topics in our community today.’ She held that there was a reasonable apprehension of bias. It is clear that the extra-judicial statement of the judge could reasonably have been interpreted as an expression of opinion on the precise issue in the case. Clearly, the case was an exceptional one. The principles to be applied to the determination of this appeal are thus, well established:

(a) objective bias is established, if a reasonable and fair minded objective observer, who is not unduly sensitive, but who is in possession of all the relevant facts, reasonably apprehends that there is a risk that the decision maker will not be fair and impartial;

(b) the apprehensions of the actual affected party are not relevant;

(c) objective bias may not be inferred from legal or other errors made within the decision making process; it is necessary to show the existence of something external to that process;

(d) objective bias may be established by showing that the decision maker has made statements which, if applied to the case at issue, would effectively decide it or which show prejudice, hostility or dislike towards one party or his witnesses.”

95. The appellant contends that the test articulated by Fennelly at para. 551(a) is amply met in the circumstances of this case. In aid of this argument, he cites Dublin Wellwoman Centre Limited v. Ireland [1995] 1 I.L.R.M. 408 (referred to in O’Callaghan v. Mahon) and in particular the following dicta of Denham J. (as she then was): - “…In the High Court there was no suggestion of personal favour or personal interest, i.e. subjective bias of the Learned High Court Judge. The actual state of mind of the Judge was and is not an issue. What was and is in issue is the objective test: as to whether a person in the position of the appellant in this case, being a reasonable person, should apprehend that his chance of a fair and independent hearing of the question at issue does not exist by reason of the previous non judicial position, statements and actions of the Learned High Court Judge on issues which are at the kernel of this case.” (pp. 28 - 29)

96. On the other hand, the respondents point to what is said by Fennelly J. at para. 551(d) and say that when applying the cogent and rational link analysis, what the Court is required to do is ask whether the statements that have been made and relied upon, if applied to the case at hand, would effectively decide the dispute or show prejudice, hostility or dislike. They contend that the appellant has not indicated even a potential basis for prejudice, hostility or dislike. Insofar as he contends that the comments of Mr. de Paor as reported would have the capacity in the mind of a reasonable observer to cause that person to think that he would not get a fair hearing, the respondents say that the appellant must demonstrate, as per the test posited by Fennelly J. in O’Callaghan v. Mahon at para. 551(d), that the comments attributed to Mr. de Paor would effectively decide the issue on the appeal before the DAP which, they contend, he cannot establish.

97. Contrary to the respondents’ argument, I do not consider that Mr. de Paor’s comments would have to be dispositive of the entirety of the matters in issue before the DAP so long as it is established by the appellant that the reasonable observer would understand that the comments pertain to at least one central issue that falls to be decided by the panel. I will address whether Mr. de Paor’s comments engage with the issues to be decided by the DAP in due course. The bases for the reasonable apprehension of bias contended for by the appellant

98. I turn now to the two bases upon which, it is contended, a reasonable apprehension of objective bias arises by reason of Mr. Christie’s participation in the DAP. Whilst the appellant’s argument in respect of the ASTI’s contribution to the Sunday Independent article of 11 September 2022 is the fulcrum of his objective bias claim, I will firstly address the claims he made in respect of the ASTI’s membership of the CRA and the submission of the CRA in February 2018 to the Review Group.

99. There was no reference to the ASTI’s membership of the CRA in the appellant’s grounding affidavit. However, in his affidavit sworn on 24 July 2023 by way of response to Mr. Christie’s replying affidavit, he avers, inter alia, to the ASTI’s membership of the CRA and its submission to the Review Group. This issue was then addressed in a short affidavit sworn by Mr. Christie in which he avers that clear that the ASTI “had no input into the formulation of the CRA’s submission [on the review of the Gender Recognition Act 2015] and the submission does not represent a position or policy of the ASTI.”

100. The appellant’s argument is that the High Court erred in failing to have any regard to the fact that the ASTI name was on the CRA submission, and he contends that it erred in diminishing the ASTI’s connection with the submission as “the mere fact of membership of an association.” He points out that the submission called on the Government to allow children under 16 to legally change their gender and for children over 16 to be able to do so without parental consent, proposals which the appellant describes as “a radical and disturbing submission.”

101. He says that a reasonable observer would associate the views expressed in the CRA leaflet, namely that children under 16 should be allowed to change their gender and should be allowed to do so without parental consent, with the names of those listed on the leaflet as members of the CRA. Therefore, he contends that there is a link between the ASTI, whose name is on the leaflet, with the views expressed by the CRA. He says that the ASTI have not distanced itself from those views.

102. The respondents’ position, as deposed to by Mr. Christie, is that the ASTI played no part in the composition or formulation of the submission made by the CRA to the Review Group and that the contents of the submission do not represent the policy of the ASTI. They point out that the list of over 100 member organisations identified on the face of the submission document demonstrates the diverse nature of that membership, which is entirely inconsistent with the attribution of any single set of beliefs or world view amongst those members. Thus, mere membership of the CRA could not, they say, coherently be imputed with the policy set out in the submission.

103. As required by the case law, what the appellant must establish is that the membership of which he complains is something which would cause a reasonable person genuinely to apprehend that the fact of that membership precludes the possibility of a fair hearing of his appeal. In Locabail (UK) Limited v. Bayfield Properties Limited [2000] Q.B. 451, the Court of Appeal of England and Wales, citing Lord Browne-Wilkinson in Reg. v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 2) [2000] 1 A.C. 119, acknowledged that, in principle, the promotion of a cause may give rise to a reasonable apprehension of bias. As put by Lord Hutton in Ex parte Pinochet Ugarte, “there could be cases where the interest of the judge in the subject matter of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake confidence in the administration of justice as much as a shareholding (which might be small) in a public company involved in the litigation.” The question thus turns on what can be considered as the promotion of a cause. Mere membership of an association or body does not meet that threshold. In Kelly v. Minister for Agriculture [2021] 2 I.R. 624, Charleton J., at para. 193, endorsed the approach of the courts in Helow v. Home Secretary [2008] UKHL 62, [2008]

1 W.L.R. 2416 and he held that membership of an association which has strong views does not mean either identification with those views, or that apparent bias arises because of such association. He stated: - “The closest parallel in the decided cases is Helow v. Home Secretary [2008] UKHL 62, [2008] 1 W.L.R. 2416. There, the decision-maker was the member of an association which expressed through its publication strong views on matters related to Israel and the Palestinian question. For some views expressed by this magazine, it was said, a person such as the judge who was on effectively the steering committee ought to resign or make a public disavowal, for others the views are just views, part of the range of opinions, extreme or stupid or worth immediately dismissing from mind, or interesting or carrying perhaps some sense. Just because one is of a particular religion or national identification and is part of an association with a magazine that expresses strong views does not mean identification with those views, much less an apparent bias disqualifying a member of the association from dealing with asylum cases.” (Emphasis added)

104. Here, the question is whether the fact of the ASTI’s membership of the CRA amounts to the demonstration of some clearly “strong commitment” to a particular cause which, if applied to the issues that the DAP has to deal with, would cause a person to think that a fair hearing may not be possible.

105. I am satisfied that the ASTI’s membership of the CRA does not reach that threshold. In my view, it is not credible for the appellant to suggest that an organisation like the CRA which has such a broad and diverse membership as to include Atheist Ireland, the Catholic Guides of Ireland, the Irish National Teachers Association and the Jesuit Centre for Faith and Justice, to name but a few, can be said to have a uniform belief system that unites all of its members. The mere fact that the ASTI is listed (in conjunction with myriad other organisations) as a member of the CRA on the face of the submission document is not sufficient, in my view. Moreover, the sworn evidence of Mr. Christie is that the ASTI had no input into the submission made by the CRA to the Review Group. Viewed dispassionately and robustly, as it must be, the ASTI’s membership of the CRA cannot be said to give rise to a reasonable apprehension of bias on the part of Mr. Christie such as to disqualify him from being a member of the DAP.

106. That said, there remains the appellant’s principal argument as to why Mr. Christie must be viewed as objectively biased, namely the comments of Mr. de Paor as recorded in the Sunday Independent article, to which I now turn.

The ASTI’s statement to the Sunday Independent

107. The appellant contends that there is a reasonable apprehension of bias on the part of Mr. Christie in hearing his appeal to the DAP given on the one hand, the content of the ASTI statement, and on the other hand, the issues to be decided by the DAP. I turn first to the newspaper article itself.

108. The full reference to the ASTI in the article was as follows: - “The Association of Secondary Teachers Ireland (ASTI), which represents more than 18,000 secondary school teachers, said it generally advises schools to use the pronouns students request to be addressed by. The association’s deputy general secretary, Diarmaid de Paor, said: ‘We don’t have a written policy, but certainly we would advise schools to use the pronoun that a child wishes to be used, and that’s generally what happens. There can be difficulties where the child says one thing and the parents say something else. We would generally encourage the parent to support the child. However, such an approach is not universally supported. Some schools and boards seek alternative advice.’”

109. The title of the article was “Schools depend on activist groups to inform transgender policies”. The headline of the article suggests that transgender policies were being directed or informed by certain activist organisations named in the article. The ASTI was not identified in the article as such an organisation.

110. The appellant describes the ASTI intervention as “highly significant” coming as it did at a “critical” moment just days after his suspension from his employment was first reported in the news media. He submits that the ASTI, of which Mr. Christie is the General Secretary, intervened in a public debate on “transgenderism” and took a position which is very much opposed to his position. It is contended that the ASTI’s advice to schools to use the pronoun that the child wishes to be used clearly mirrors the instruction given by the principal in his case. Insofar as the Judge opined (at para. 192) that a reasonable person armed with all the facts “will…know that the ASTI does not have a formal policy or position” on “transgenderism”, the appellant contends that any distinction between a “general position” and a “formal policy” is not one which should have been determinative in coming to a conclusion on whether a fair question of a reasonable apprehension of bias was made out in circumstances where, he says, the ASTI was advising schools and teachers to take a particular approach in relation to transgenderism.

111. He contends that the significance of the ASTI intervention was not afforded its due weight in the High Court in circumstances, inter alia, where the intervention was reported in the newspaper with the largest circulation in the State some one and a half weeks after his suspension from the School. He describes the ASTI intervention as a direct intervention in the “fire storm of public controversy” around the appellant himself and describes the comment “certainly we would advise schools to use the pronoun that a child wishes to be used” as “radical” as it is not the law of the land. He points out that the ASTI was not just taking to itself in a room, rather it was advising schools. The appellant also points to the fact that his name is referenced twice in the article.

112. Although it is Mr. de Paor, the Deputy General Secretary of the ASTI, who is quoted in the newspaper article, the respondents acknowledge that it is fair to associate Mr. Christie, the General Secretary of the ASTI, with the statement made by its Deputy General Secretary. Thus, they accept that Mr. Christie can be associated with what is attributed to the ASTI since it is an “institutional” statement and not Mr. de Paor’s personal view. They submit, however, that that does not demonstrate objective bias.

113. They say that to suggest that the very short statement made by Mr. de Paor in the Sunday Independent article goes so far as to decide or cause a reasonable observer to apprehend that Mr. Christie has decided, insofar as the appellant wants to argue them at the DAP, between the constitutional rights of the appellant, the rights of the student and the ethos of the school, or how all of those are to be reconciled, is an unsustainable proposition. They say that the ASTI has not taken a position on what is the demand to be made of a particular teacher where the teacher raises a question of conscientious objection to an instruction of the sort given here. It is submitted that when looked at in that light, the appellant’s objection to Mr. Christie must fall away.

114. Whilst the respondents acknowledge that the balancing exercise referred to Edwards J. at para. 27 of Board of Management of Wilson’s Hospital School v. Burke [2023] IECA 52 may need to be considered by the DAP, their argument is that nothing Mr. de Paor has said is determinative of those issues. Hence, the appellant’s objection is “paper thin” and does not get close to demonstrating a reasonable apprehension of prejudgment on the part of Mr. Christie.

115. They also assert that the correct reading of the piece suggests nothing at all to the effect that the text of what Mr. de Paor is saying is linked to a commentary on the appellant, or the case in which he was involved at the time of the publication of the article. It is submitted that the only connection to the appellant is that, for editorial or other reasons, the newspaper made reference to him as part of the overall background.

116. In response to a question from the Court as to whether a reasonable observer would align Mr. de Paor’s comments with the publicity that surrounded the appellant himself some ten days or so prior to the publication of Mr. de Paor’s comments, counsel for the respondents maintained that the appellant was only referred to in the article in passing and that the article did not place him at the centre of the controversy, or suggest any link between him and what Mr. de Paor said. The respondents’ position is that there was nothing in the piece that links Mr. de Paor’s comments with the appellant’s case. This, counsel emphasised, is an important factor when reading the article. Of course, the appellant would say that he is twice referenced in the article although, I hasten to add, not by Mr. de Paor.

117. The respondents’ overarching contention is that the advice given to the school by the ASTI is not determinative in any real or meaningful way of the issue that the DAP has to decide and, therefore, the High Court was correct to say that there was no cogent or rational link between the ASTI statement and the issue to be determined by the DAP.

118. Whilst the respondents characterise Mr. de Paor’s statement as one primarily addressed to what happens if a student has one view and the parents of the student have a different view, and submit that Mr. de Paor’s statement says nothing at all about whether a teacher should be compelled to take a particular position, in my view, one cannot lose sight of first part of Mr. de Paor’s statement, viz “We don’t have a written policy, but certainly we would advise schools to use the pronoun that a child wishes to be used”. To my mind, that suggests to the reasonable reader apprised of all the relevant facts that if a school were to abide that advice, it would necessarily involve, at the very least, instructing teachers to use the preferred pronoun of the student (as indeed occurred here). Whilst the principal describes the instruction given as a legitimate one, the appellant contends that the objection he voiced to that instruction and his appeal to the DAP put the legitimacy of the principal’s instruction in issue. I will return to this in due course.

119. A feature underlying the respondents’ response to the within appeal is the emphasis they put on the fact there is no formal policy on the part of the ASTI in relation to the subject matter of the Sunday Independent article, and their insistence that the advice referred to in the article is not a statement of a rule or even a policy but rather only a indicative of a general practice.

120. Whilst there may be no formal ASTI policy, it seems to me, nevertheless, that an objective observer apprised of all the facts would reasonably conclude that the practice referred to by Mr. de Paor had at the very least the informal or tacit approval of the ASTI Executive (in circumstances where Mr. Christie has not sought to distance himself from those comments). Thus, what Mr. de Paor said on 11 September 2022 (and with which Mr. Christie can be associated) is not a solo run on the part of the former, rather it is demonstrative of the practice within the ASTI, even if no formal policy exists, to advise schools to use the pronoun that a student wishes to be used. I consider that the respondents place too much emphasis on the fact that the ASTI does not have a written policy. The direct quote of Mr. de Paor is at least indicative of a practice which the union has adopted even if it has not gone to its members to formally adopt a policy.

121. Here, the Court’s focus is on whether anything said by Mr. de Paor is relevant to the issues that may have to be decided in the appeal before the DAP and in circumstances where the desire of the principal to find an area of compromise with the appellant was not realised, and where, thereafter, events unfolded through the chapel incident and the dinner incident. In essence, the question is whether part of what will have to be looked at by the DAP includes the principal’s instruction to teachers to use the pronouns the student wished to be used (which is consistent with the advice the ASTI provides) and the substance of the appellant’s objection to the instruction given by the principal.

122. For the purposes of considering whether there exists the requisite cogent link between what was said by Mr. de Paor (which, it is accepted, can be attributed to Mr. Christie in his institutional capacity as General Secretary of the ASTI) and the issues to be determined by the DAP, it is thus necessary to consider, from the perspective of the objective observer who is armed with all the facts and having the attributes required by the case law, what is likely to arise at the hearing of the appellant’s appeal to the DAP.

The issues to be decided by the DAP

123. It will be recalled that at para. 166 of the judgment the Judge concluded that “…even if the ASTI’s position is or would be perceived by the reasonable observer in any of the ways described by Mr. Burke, objectively, there is no cogent link between that position and the issues to actually be decided in the appeal.” This conclusion was premised on the Judge’s findings that Mr. de Paor’s comments did not address (i) the position that ought to obtain where a teacher objects to using a student’s preferred pronoun, (ii) whether a refusal by a teacher to use a pupil’s preferred pronoun could ever justify the commencement of disciplinary proceedings against the teacher or (iii) anything relevant to the grounds of review before the DAP (para. 151), and his findings regarding the subject matters of the principal’s report and the scope of the appeal to the DAP.

124. The appellant describes these findings as the main point of conflict between the parties and he says that a central issue in the within appeal is High Court’s misconstruction of the basis for the disciplinary action taken against him. He says that the basis for his dismissal was set out in writing by the principal in her Stage 4 report of 15 August 2022.

125. Essentially, the appellant’s contention is that the report makes it clear that the substance of his objection to the principal’s instruction was a factor in his dismissal. He thus contends that the Judge erred in misconstruing the basis for the disciplinary action against him and as a result came to the erroneous conclusion that the statement of the ASTI was not reasonably linked to the issues to be determined by the DAP.

126. He reiterates that he was suspended and dismissed after he objected to an instruction of the principal to use the “they” pronoun for a student and submits that there would be no disciplinary process and no dismissal if that instruction had not been given. He maintains that the precise issue in this case is that of “transgenderism” and the compelled use of the “they/them” pronoun and that that is the precise issue that was addressed by the ASTI in the Sunday Independent article. He emphasises that what is at issue in the DAP is a disciplinary process commenced at the Stage 4 level which has “extremely serious consequences for the employee concerned who faces the threat of dismissal without having had the opportunity to address concerns about her work and conduct through the earlier stages of the process”, as said by Butler J. in Dunne v. Board of Little Angels Special School.

127. The reasons given in the letter of 22 December 2022 for the appellant’s dismissal from his position was that “the conduct issues outlined in the Principal’s report amount to serious misconduct” on the appellant’s part. The report addressed “two aspects” of the appellant’s behaviour.

128. In relation to the first of these two aspects viz, “Mr. Burke’s objection to the direction to staff regarding the social transitioning of a student”, the appellant says that the appropriateness of the manner of his behaviour cannot be properly considered by the DAP without considering the substance of his objection, which is his objection to having to use the “they” pronoun in circumstances where he says his constitutional rights were engaged and were being breached.

129. Fundamentally, however, the appellant’s focus is on the second aspect of his behaviour as outlined in the report, namely “(ii) Concerns around Mr. Burke’s public statement of his refusal to accept transgenderism”. He says that this relates directly to substance of his objection to the principal’s instruction. He references the following statements in the report viz “Mr. Burke’s position runs counter to the Code of Professional Conduct for Teachers issued by the Teaching Council, which sets out the standards that are expected of all registered teachers regardless of their position” and “I would contend that Mr. Burke’s public statement regarding his non-acceptance of transgenderism is not in keeping with the ethos of the school or the expected standards of teachers, as set out in the code of Professional Conduct for Teachers.”

130. He submits that the principal reserved her severest censure for this alleged second aspect of his behaviour since she stated that the behaviour “relates directly to child welfare.” This is language, the appellant says, which the Circular says justifies suspension and dismissal and which, he maintains, relates to his public statement of his refusal to accept “transgenderism”. He references the letter of dismissal of 20 January 2023 which advised that “the Board finds that the conduct issues outlined in the principal’s Principal’s report amount to serious misconduct on your part.”

131. The appellant’s overarching argument is that “put simply, the High Court completely ignores the second of the two alleged issues in the principal’s report regarding the Appellant’s behaviour.” He submits that this Court cannot hold that what is said at paras. 106, 117 and 165 of the judgment constitutes a proper reading of the principal’s report and contends that the Judge’s view that the dismissal “was nothing to do with the fact that he expressed his views” cannot be correct or fair in light of the view taken by the principal in her report, namely “Mr. Burke’s position runs counter to the Code of Professional Conduct for Teachers…”. He maintains that that is essentially the issue to be decided by the DAP.

132. The position advocated by the respondents accepting (as they do) that Mr. Christie’s and the ASTI’s stated position (as recorded in the newspaper article) are synonymous, is that, nevertheless, a reasonable fair-minded observer applying their mind properly to the actual issues which the DAP is required to decide would have no hesitation in concluding that there is no cogent link between any of the matters raised in the article and the issues to be determined by the DAP.

133. They submit that the Judge was correct to determine that the two animating concerns which were the subject matter of the report related to the manner, fora and timing of the appellant’s objection. They say that it is clear from the principal’s report that what the School is concerned about is the public nature of the appellant’s objection and its apprehension that he intends to continue to express himself in a very public manner and in a fashion that is inconsistent with and not in keeping with the Code of Conduct for Teachers.

134. Hence, their position is that a full and considered reading of the report shows that the second issue of concern in the principal’s report is not that the appellant holds or expresses views in relation to “transgenderism” per se, rather it relates to the manner and context in which he expressed his views, having regard to child welfare considerations and the Code of Conduct. On that basis they assert that the appellant’s criticism of the judgment is misplaced.

135. When asked by the Court whether, from the tenor of the report, the principal was just as concerned about the appellant’s refusal to abide her instruction as well as the way he communicated his refusal and the expression of his views, counsel for the respondents maintained his argument that the difficulty was not that the appellant had expressed his views or his conscientious objection, rather it was how and where he expressed them, namely the appellant’s public manifestation of his views in the chapel and at the dinner. The respondents’ view, it was said, was supported by the fact that no disciplinary action took place after the appellant’s meeting with the principal in May 2022.

136. I cannot agree with the respondents that the animating concerns in the principal’s report relate solely to the “public” nature of the appellant’s behaviour. To my mind, a reasonable observer, fully apprised of all the relevant facts, would consider the second aspect of the appellant’s behaviour, as set out in the principal’s report, directly referable to the substance of his objection and not just to the manner, timing and fora of that objection.

137. My view in this regard is fortified by the following statements in the report: - “There are two aspects to Mr. Burke's behaviour: first, the manner in which he has expressed his objection to the direction to staff regarding the social transitioning of a student and second, concerns around the public statement of his refusal to accept transgenderism and the potential impact this may have for this particular student and the student body.”

and

“The second aspect of Mr Burke's behaviour relates directly to child welfare. Mr Burke confirmed that he does not accept transgenderism very publicly in the Chapel in front of students and staff and other school stakeholders. This has implications not only for the particular student, but other students who may wish to transition in the future and, indeed, the entire student body. Mr Burke's position runs counter to the Code of Professional Conduct for Teachers issued by the Teaching Council, which sets out the standards that are expected of all registered teachers regardless of their position.”

and

“The ‘demand’ communicated to staff in my email of 9th May 2022 was entirely in keeping with the Code of Professional Conduct for Teachers and was entirely consistent with its expectation of a commitment to inclusion and the accommodation of diversity. In addition, it was in keeping with the ethos of the school. As such, it was a reasonable and legitimate instruction to staff.”

and

“I would contend that Mr. Burke's public statement regarding his non-acceptance of transgenderism is not in keeping with the ethos of the school or the expected standards of teachers, as set out in the Code of Professional Conduct for Teachers. Schools are supposed to be safe places for students who should be able to rely on teachers to look out for, and act in, their best interests. While their children are at school, parents entrust their children to the care of teachers and other staff at the school who act in loco parentis to those students. It is well established that schools have a legal duty of care to students who are in their care. This duty of care applies to students on both a collective and an individual basis. I have serious concerns about how Mr. Burke may act in the school in future in circumstances where he has stated his personal views on transgenderism in school and at a public event after the school term had ended. These concerns extend to the student concerned and the entire student body”. (Emphasis added)

138. There is, therefore, merit in the appellant’s submission that were the principal’s alleged issue not about substance of his objection, the lengthy justification in the report of the substance of her demand would make little sense.

139. The question now to be addressed is how, if at all, the stated position of the ASTI on students who wish to be addressed by a different pronoun intrudes on the issues to be decided by the DAP. On its face, the stated position of the ASTI says nothing about the appellant or indeed what is to happen when a teacher has a fundamentally opposing view to the type of instruction given by the school principal in this case. But, indisputably, in the face of the appellant’s contention that it was not, one of the issues for the DAP will be whether the instruction given by the principal to the teachers at the School to use the student’s preferred pronoun was legitimate (as the principal says it was) - an instruction which is in line with the advice the ASTI proffers to schools on the issue.

140. In my view, a reasonable observer apprised of all the facts would know that when sending the email she sent on 9 May 2022, the principal was acting consistently with the advice the ASTI gives to schools. The advice proffered by the ASTI to schools is to use the pronouns the child wishes to be used, which, as I have said, is precisely the issue to which the appellant takes objection. That being the case, as far as second aspect of the appellant’s behaviour (as outlined in the report) is concerned, it seems to me that the reasonable person armed with all the facts would reasonably conclude that there is a decided overlap between the principal’s instruction (to which Mr. Christie can be aligned because the instruction mirrored the ASTI’s position), the appellant’s refusal to abide that instruction on the ground, as he maintains, that the instruction was not legitimate such that there was no misconduct on his part and Mr. Christie’s participation in the DAP.

141. It is against that backdrop that the DAP will be required to look at the merits of the case, including the appellant’s stated determination to continue as before notwithstanding the principal’s instruction (with which, as I have said, Mr. Christie can be aligned since the principal’s instruction was in line with the practice of the ASTI). (My conclusion that the merits of the appellant’s case fall to be addressed by the DAP is discussed more fully below).

142. It cannot be gainsaid that the ASTI’s position (even if no formal policy is in place) is that schools should facilitate a student’s request for a different pronoun to be used. From the perspective of an individual school who follows that advice (as would appear to be the position here), that means the school having to instruct teachers to abide the student’s request.

143. In my view, the second expressed concern in the report can reasonably be viewed as encompassing the likely effect going forward of the appellant’s stated objection on the student concerned, other students, and the ethos of the School, and in respect of which the principal opined that the appellant’s “non-acceptance of transgenderism is not in keeping with the ethos of the school or the expected standards of teachers, as set out in the Code of Professional Conduct for Teachers.” I have so concluded irrespective of the fact that the title of the second aspect of the “conduct issues” is entitled “Concerns around Mr. Burke’s public statement of his refusal to accept transgenderism” (emphasis added) and that there is more than one reference to the appellant’s “public” expression of his opposition in the section.

144. In essence, what is at issue, from the School’s perspective, and what led to the Stage 4 disciplinary procedure being invoked, are both the manner/fora in which the appellant expressed his objection to the principal’s instruction and his likely future conduct going forward based on his objection to the principal’s instruction. The view of the School is that both those issues (but particularly the latter) has child welfare implications.

145. For all of the foregoing reasons, I take a different view to that expressed by the Judge at para. 106 of the judgment that “the ‘conduct issues’ in the report…were the fora, timing and manner in which Mr. Burke raised his objections to the principal’s instructions and not the fact that he objected to the instruction”, and which the Judge essentially reiterated at paras. 117 and 165.

146. In my view, any reasonable reader of the principal’s report would understand that the principal considered her overarching complaint against the appellant to fall under the heading of refusal to comply with a legitimate instruction resulting in serious consequences, as provided for in the Circular. In those circumstances, I cannot agree with the High Court’s finding, at para. 116, that no decision is required by the DAP on “the rights and wrongs” of the principal’s instruction to the appellant (along with others) on 9 May 2022 that the “they” pronoun should be used in place of the pronoun that had been used up to that point in respect of the student concerned. The principal’s instruction is, to borrow the phraseology of Denham J. in Dublin Wellwoman Centre Limited v. Ireland, a “kernel” of this case. Having regard to the contents of the principal’s report, the appellant’s avowed intention not to follow the principal’s instruction, and the appellant’s grounds of appeal (discussed more fully below), the reasonably informed observer would consider that the DAP will have to engage on the requisite analysis of the legitimacy of that instruction. I am further fortified in this view from the dictum of O’Malley J. in Kelly v. The Board of Management of St. Joseph’s National School, Valleymount, County Wicklow [2013] IEHC 392. In that case, O’Malley J. quashed two decisions of the respondent board on the basis, inter alia, that the board’s disciplinary process did not accord with the dictates of fairness or rationality. As part of her rationale for so doing she stated, at para. 163: - “There is no analysis of the instruction given, whether it was in fact legitimate and whether the consequences of refusal were necessarily serious…”

147. Here, there was an instruction given and, thereafter, an expressed intention on the part of the appellant not to abide that instruction based as the appellant says on his religious beliefs. As I have endeavoured to explain above, the underlying premise of the principal’s instruction (namely that teachers should use the pronoun that the student in question wished to be used) closely mirrors the advice proffered by the ASTI to schools and with which Mr. Christie can be aligned for the reasons set out earlier in this judgment. I find therefore that the appellant has established a cogent and rational link between the objective bias he asserts and “its capacity to influence the decision to be made”, as O’Donnell J. puts it in Kelly v. University College Dublin.

148. Whilst I accept that Mr. Christie does not sit on the DAP in his capacity as General Secretary of the ASTI, it must nevertheless be the case that Mr. Christie’s role as General Secretary (aligned as he is qua that role with the ASTI’s advice to schools on the use of a transitioning student’s preferred choice of pronoun) would be influential to the reasonable independent observer (as indeed the Judge himself acknowledged at para. 140 of the judgment). In all of those circumstances, I cannot agree with the Judge’s view, at para. 165, that “there is not a fair question that the Appeals Panel has to decide any issue in respect of which it is claimed the ASTI has taken a position.” To recap, the ASTI’s position (with which Mr. Christie can be aligned) could reasonably be interpreted as the ASTI’s position on an issue that will fall to be considered by the DAP when hearing the appellant’s appeal against his dismissal.

149. I turn now to the appellant’s complaint regarding the Judge’s assessment of the nature and scope of the appeal to the DAP as provided for under the Circular. Before doing so, it is apposite to briefly rehearse the appellant’s appeal grounds. He advances six grounds. Pursuant to Ground I, which is headed “The provisions of the agreed procedures were not adhered to”, he asserts, inter alia, at Ground I(a), that he was “entirely justified in objecting both privately and publicly to the Principal’s demand”. He contends that the principal’s demand required him to deny his “Christian belief”. Pursuant to Ground I(b) and (c), he makes numerous complaints of breaches of procedural fairness and natural justice including, inter alia, that certain findings and conclusions in the principal’s report were made without affording him the opportunity to respond. Pursuant to Ground II, he asserts that all the relevant facts were not ascertained. Ground III asserts that all the relevant facts were not considered and/or not considered in a reasonable manner. Ground IV asserts that the appellant was not afforded an opportunity to answer the allegation against him. Therein, he asserts, inter alia, that “there is no serious misconduct to warrant a Stage 4 disciplinary process”.

150. The theme of Ground V is that the appellant could not reasonably be expected to have understood that his alleged behaviour would attract disciplinary action. The full text of this ground is set out at para. 112 of the High Court judgment and so I do not reprise it here. Suffice to say that pursuant to this Ground, the appellant asserts, variously, that “the school staff meeting is a place where robust discussion is to be expected” and “the Chapel, being a religious service, was the most appropriate place to make an appeal about a serious and pressing religious matter”. He goes on to state that his “actions were at all times protected by the Constitution”. He describes the disciplinary process as a breach of and an unlawful interference with his constitutional rights.

151. The heading of Ground VI is to the effect that the sanction recommended is disproportionate to the misconduct alleged. Under this heading, the appellant asserts that there was no misconduct such as to warrant the invoking of the Stage 4 disciplinary process or any disciplinary action. He further asserts, with regard to the concerns expressed in the principal’s report as to how he may act in the school in future where he has stated his personal views on “transgenderism” in school and at a public event that “it is wholly unlawful to initiate disciplinary action and/or to dismiss a teacher based on an apprehension as to future conduct.”

152. Having considered the appellant’s notice/grounds of appeal, the Judge also rejected the appellant’s claim of objective bias on the basis that “objectively” a fair question did not arise from the contents of his appeal to the DAP. He found that “Mr. Burke’s appeal is overwhelmingly concerned with procedural matters…”.

153. The appellant’s contention in this Court is that the Judge erred in unduly circumscribing the nature and scope of the appeal provided for under the Circular and the powers of the DAP. More fundamentally, he says that his appeal grounds necessarily involve a consideration on the merits and that such consideration is provided for in the appeal process pursuant to the Circular.

154. Whilst in the court below the respondents contended that the DAP “is not concerned with the merits of the finding of serious misconduct against Mr. Burke”, they did not seek to maintain that position on the appeal. What they posit in their written submissions to this Court is that in assessing the appellant’s bias claim the Court should have regard to “the particular circumstances of the case and the decision-making process at issue” (para. 64 of their written submissions). They say that the appeal to the DAP is “primarily a review in relation to process” and that “it is not a de novo appeal and it is certainly not an adjudication upon the merits of Mr Burke’s views on gender identity…”

155. In the first instance, I am satisfied that the appeal provided for in the Circular necessarily involves a consideration of the merits of a decision to dismiss. Undoubtedly, a consideration of the reasonableness and/ or proportionality of a dismissal decision is provided for in many of the grounds listed in Clause 3 of the Appendix 1A of the Circular (see especially Clause 3 (iii), (v) and (vi)). Such consideration must involve the merits of the case under appeal, in my view. The appellant’s appeal grounds clearly invoke Clause 3(iii), (v) and (vi) of Appendix 1A.

156. The respondents do not really dispute that the appeal process provided for under the Circular allows for an appeal on the merits, or indeed that some of the appellant’s appeal grounds pertain to the merits of his dismissal. Rather, the argument they advance is that whilst the appellant is entitled to pursue his grounds of appeal to the DAP, the question for this Court is whether the comments attributed to the ASTI in the Sunday Independent article (with which Mr. Christie can be aligned) are determinative or dispositive in any credible way of the adjudication of the appellant’s grounds of appeal. The respondents submit that it is manifestly obvious that they are not.

157. Whilst it is certainly the case that the appellant advances a range of matters in his appeal to the DAP (for example his religious beliefs and the alleged breach of his constitutional rights) which, in my view, could not reasonably be considered by the objective observer as having been touched upon by the comments attributed to the ASTI/Mr. Christie in the Sunday Independent article, it remains the case that an objective observer, apprised of all the facts, would consider Grounds V and VI of the appellant’s appeal as touching upon the principal’s direction to staff (including the appellant) regarding the transitioning of a student, a direction which, as I have said, mirrors the advice the ASTI has provided to schools. In those circumstances, I respectfully depart from the view taken by the Judge that “Mr. Burke’s appeal is overwhelmingly concerned with procedural matters” (para. 165).

158. For all of the reasons set out above, I am satisfied that the appellant has made out a fair issue to be tried on the basis of a reasonable apprehension of bias arising from Mr. Christie’s participation in the DAP hearing of the appellant’s appeal. I would observe, purely in passing, that once the issue of alleged bias was raised by the appellant, it was open to the ASTI to nominate some other member of the union or even someone from outside the union (it is notable that Appendix1 to the Circular requires that membership of the DAP must include a nominee of the dominant trade union, which suggests that the ASTI nominee could be someone from outside of the union). Somewhat unhelpfully the appellant refused to answer a direct question put to him by the Court as to whether his objection was personal to Mr. Christie because of his particular position in the ASTI, or whether he would raise the same objection to any member of the ASTI serving on the DAP. I return to this issue below.

Other arguments advanced by the appellant

159. Before turning to the question of whether the application for interlocutory injunctive relief here should be assessed by the application of a threshold higher than a fair issue to be tried, I will briefly address a number of matters which the appellant raised in the course of his submissions. It will be recalled that in deciding that the conduct issues raised in the principal’s report were the fora, timing and manner in which the appellant raised his objection to the principal’s instruction and not the fact that the appellant objected to the instruction, the Judge relied on the observations of Edwards, J. at para. 45 of his judgment in Board of Management of Wilson’s Hospital School v. Burke [2023] IECA 52. The appellant submits that the observations of Edwards J. run counter to the contents of the principal’s report and so, he asks this Court to depart from the findings of Edwards J. on the basis that findings constitute a “clear error” of the type referred to by Clarke J. in In Re Worldport Ireland Limited (In Liquidation) [2005] IEHC 189 at para. 14. He further contends that the issue of whether he would obey the instruction was in fact recognised by Owens J. in Board of Management of Wilson’s Hospital School v. Burke [2023] IEHC 288 (paras. 93 - 96) as a “conduct” issue which was addressed in the principal’s report.

160. I perceive no basis upon which the Court has to embark on a consideration of whether the Worldport criteria are engaged by the appellant’s argument. Whilst Edwards J. described the appellant’s conduct in the manner in which he ventilated and publicised his grievances as the “gravamen” and “the ostensible basis” of the Board of Management’s

decision to put the appellant on administrative leave, he did not opine, one way or another, as to the exact parameters of the conduct issues addressed in the principal’s report. Moreover, what Edwards J. was addressing at para. 45 was the appellant’s claim that his constitutional rights were engaged by the placing of him on administrative leave, not whether the fact of his objection to the principal’s instruction was within the ambit of the conduct issues addressed in the principal’s report.

161. Another argument advanced by the appellant was that the Judge, in purporting to establish the basis for the disciplinary action taken against him, wrongly moved beyond the text of the principal’s report and placed reliance on emails and a meeting all of which, he claimed, predated the principal’s report by several months. He contended that the actions of the Judge did not afford proper regard to the provisions of the Circular which, he submitted, clearly stipulate that the principal’s report is to be a standalone “comprehensive report on the facts of the case” and which provides that the teacher is to be informed “in writing” of “the precise nature of the matters concerned”.

162. Insofar as the Judge found that that “contemporaneous documentation” would lead a reasonable person to understand that the conduct issues in question related to the timing, fora and manner of his objection and not the fact that he was objecting to the instruction to use the “they” pronoun, the appellant complained that the Judge failed to allude to correspondence which passed between the principal and the Chairperson of the Board of Management some two days after the chapel service in which the principal described the appellant as someone “who will not accept transgenderism” and which, the appellant contends, supported his claim that the reasons for his dismissal were not just the fora, timing and manner of his objection to the principal’s instruction.

163. In the first instance, I perceive no error in the Judge referring to the correspondence described in para. 107 of the judgment. This correspondence is in fact referred to in the principal’s report. Accordingly, there is no merit in the submission that the Judge did not pay proper regard to the provisions of the Circular, or that he somehow exceeded the parameters of the Circular. Nor do I find merit in the appellant’s second complaint. Insofar as he contends that the correspondence that passed between the principal and the Chairperson supports his argument that the misconduct alleged against him is because he is someone “who will not accept transgenderism”, I would only observe that in the second of the two aspects of the appellant’s behaviour set out in the principal’s report (which the Judge sets out at para. 105) the principal states, inter alia, “Mr Burke confirmed that he does not accept transgenderism very publicly in the Chapel in front of the students and staff and other school stakeholders” a statement which effectively echoes the contents of the communication to which the appellant alleges the Judge failed to refer.

164. The appellant also argued that the omission in the judgment delivered on 20 December 2023 of the entirety of the final paragraph of the principal’s report raised an apprehension as to whether the Judge had regard to the entirety of the report in circumstances where, the appellant says, the last paragraph of the report constitutes some of the clearest evidence that the substance of his objection was a factor in his dismissal.

165. Again, there is no merit in this argument. As the Judge explained in the shorter of the two judgments he delivered on 15 February 2024, the final paragraph of the “Conclusion” section of the principal’s report was accidentally omitted from para. 105 of the 20 December 2023 judgment. Any reasonable reader of para. 105 of the 20 December 2023 judgment would understand that the Judge intended setting out the “Conclusion” section in its entirety. That he so intended is more than a sufficient basis to conclude that when he made his decision on the issues before him, he had had regard to the entirety of the “Conclusion” section of the report. The fact that I have taken a different view as to what the principal’s report addresses does not detract from the fact that in coming to his

decision the Judge clearly had regard to the report in its entirety.

The need for a standard beyond “the fair issue to be tried” threshold?

166. I have found that the appellant had made out a fair issue to be tried as regards Mr. Christie’s continued participation in the DAP. That being the case, I turn now to the respondents’ contention that for the purposes of the first limb of the interlocutory injunction process, the appellant should be required to meet a higher threshold than that of a fair or serious question to be tried.

167. In the course of their submissions, the respondents argued (as they had in the High Court) that if the Court were minded to find that the issue raised by the appellant meets the threshold of a fair or serious issue to be tried, then the Court should hold that the fair question to be tried threshold is not sufficient in the circumstances of this case. They described the fair issue to be tried analysis as one which classically and most properly applies where the court is identifying a holding position pending the trial of the action, in circumstances where a different picture may emerge at the trial. They submitted that because the test for objective bias is one of the reasonableness of the apprehension, the standard by reference to which the objective observer’s apprehension of bias must be established will not vary materially as between the interlocutory stage and the trial, and that, therefore, it is not a situation where a different picture is liable to emerge at trial. I accept that to be the case.

168. That being the case, the respondents contend that the question then becomes whether it is appropriate for the Count to adopt the lower threshold of a fair or serious issue to be tried. They advocate that the appropriate analysis is for the Court to say that the fair question to be tried analysis is too low a threshold because it is liable to lead to a situation where, potentially at least, an unduly flimsy concern may give rise to the possibility that injunctive relief would be granted.

169. The respondents advance this argument because they accept that if a plaintiff in a bias application of this kind meets the threshold of a fair issue to be tried, then the balance of justice will always weigh in favour of restraining the process because, obviously, if the process goes ahead in front of a decision-maker that is objectively biased, then by definition there is irremediable prejudice. That scenario, they argue, puts the focus on the first limb of the test for injunctive relief and, so, they advocate for the higher threshold of a strong case as the more appropriate threshold to apply.

170. On the other hand, the appellant contends that the applicable test is the fair question to be tried test as outlined at paras. 83 - 84 of the High Court judgment. Alternatively, he submits that insofar as the respondents advocate that the threshold should be higher than the fair question to be tried test, that that higher test is amply met in all the circumstances of this case.

171. I am satisfied that the factual matrices which I have outlined above in determining that the appellant has met the fair issue to be tried threshold are also sufficient to satisfy the strong case threshold. In essence, the appellant has made out a reasonable apprehension of bias whether one applies the fair issue to be tried test or the strong case test. Summary of the first limb of the appellant’s application for interlocutory injunctive relief

172. The primary focus of the appellant’s arguments on the appeal was the statement made by Mr. de Paor on behalf of the ASTI as reported in the Sunday Independent article. As I have already said, no one disputes that Mr. Christie, as the General Secretary of the ASTI, would be perceived by the reasonable observer as being associated with Mr. de Paor’s statement which is in effect the position the ASTI has adopted as regards a transitioning student’s preferred pronoun. For the reasons I have set out above, I am satisfied that the appellant has made out a fair issue to be tried (and indeed a strong case) that there is a reasonable apprehension of objective bias if Mr. Christie remains part of the DAP. My finding is premised on the nature of Mr. Christie’s role in the ASTI, and on the basis that a reasonable observer properly apprised of all the facts would understand that the ASTI’s position regarding students who wish to be addressed by a different pronoun, whilst not a formal policy, is likely to be adhered to by schools and indeed would appear to have been adhered to by the School in this case. The position adopted by the ASTI Executive runs counter to the appellant’s position. In that circumstance, an apprehension of objective bias arises if Mr. Christie remains on the DAP.

173. Whilst I have found that the appellant has made out a fair issue (and indeed a strong case) of a reasonable apprehension of objective bias for the reasons set out above, I wish to make it clear that the apprehension arises solely on the basis of Mr. Christie’s institutional association with the remarks made by Mr. de Paor on behalf of the ASTI, and the fact that the instruction given by the principal on 9 May 2022 to teachers (including the appellant) in the School (and to which the appellant takes objection) closely mirrors the advice the ASTI gives to schools on the use of names and pronouns for transitioning students. Of itself, the fact that Mr. Christie has deposed on affidavit that he accepts that a person’s gender identity and their biological sex may not be the same thing in all cases, and accepts the concept that a person may have a preferred gender, would not, to my mind, give rise to any apprehension of objective bias when viewed from the perspective of the reasonable observer armed with the qualities and characteristics defined in the case law, and particularly in circumstances where Mr. Christie’s acknowledgment is no more than an acceptance of the state of the law in this jurisdiction.

174. I am also conscious that pursuant to the requirements of the Circular, it is the ASTI, as the dominant trade union in the School, that is the nominating trade union for the purposes of the composition of the DAP. The question that arises, therefore, given the reasonable apprehension of objective bias that I find arises from Mr. Christie’s participation in the DAP, is whether that apprehension could reasonably be said to arise in relation to any other person that the ASTI may wish to nominate to sit on the DAP.

175. I do not believe that to be the case. In my view, Mr. de Paor’s comments (which reflect the position adopted by the ASTI Executive on a transitioning student’s choice of pronoun) would not hold the same legal traction for other ASTI members (or indeed to any other person that the ASTI might nominate to sit on the DAP) as they do for Mr. Christie.

176. No other nominee of the ASTI (whether coming from within or without the union) would be as implicated with the acceptance of the ASTI’s position on a transitioning student’s preferred choice of pronoun) as Mr. Christie is. As the Judge accepted at para.

140 of the judgment (and with which I agree), it is Mr. Christie’s role as General Secretary of the ASTI that would be regarded as influential by the independent observer. However, that would not be the case in relation to someone other than Mr. Christie, be that any other member of the ASTI or any other person nominated by it. The case law (Helow, Locabail and Kelly) says as much. When looked at and adopting the approach of Lord Rodger in Helow (paras. 18 - 20), I consider that a fair-minded and informed observer would not impute to a nominee of the ASTI (be that a member of the union or some other nominee) the published views of the ASTI Executive by reason only of the nominee’s membership of the ASTI or the fact that, if they are from outside of the organisation, they were nominated by the ASTI.

177. Therefore, I reject the respondents’ suggestion that if the appellant’s objection to Mr. Christie is held by the Court to be well-founded the objection must similarly be wellfounded in relation to any other person nominated by the ASTI. The respondents’ contention also presupposes that a reasonable observer would assume that in nominating someone from either within or without the organisation, the ASTI would be seeking out someone to represent a particular position or point of view. That, however, is not necessarily the case. Boards, groups and organisations who have nominating rights do not always nominate people who are identified with a side that the nominating body has taken on a particular issue and, as I have said, they do not always nominate their own members.

178. I note that when asked by the Court whether he was objecting to any member of the ASTI that the union might nominate and not just Mr. Christie, the appellant’s response was that his application for relief was in respect of Mr. Christie who, he said, under the law of objective bias should not be present on the DAP. He declined to say whether he would object to an ASTI nominee other than Mr. Christie.

179. Whilst the Court would have expected the appellant to give a straight answer to its question, his disinclination to do so is neither here nor there, in my view, since the composition of the DAP panel is not something the appellant gets to choose. As a dismissed employee of the School the appellant has invoked his entitlement to appeal to the DAP against his dismissal. Once the panel convened to hear his appeal is set up in accordance with the provisions of the Circular, short of the type of scenario that impelled him to bring the within interlocutory application the appellant must take the DAP as he finds it, including whatever nominee the ASTI may choose to put on the panel following this judgment. In this the appellant is in no different position to any teacher appealing against a dismissal.

180. The inclusion of a teaching union nominee on the disciplinary panel envisaged by the Circular for the hearing of appeals is to ensure the inclusion of the teacher’s perspective in the disciplinary process and that teachers are treated fairly in the decisionmaking process. As deposed to by Mr. Christie at para. 6 of his replying affidavit, “The ASTI participated actively in the negotiations which led to the creation of the Circular, and during those negotiations it sought and secured robust protections for members and all teachers, including an independent appeal process, the integrity of which it is committed to upholding.” That is the process available to all teachers including the appellant.

The Balance of Justice

181. The appellant having surmounted the fair issue to be tried (and/or the strong case) hurdle, the focus of the Court must turn now to the question of where the balance of justice lies in this case. Very fairly, in his oral submissions to the Court, counsel for the respondents acknowledged that if the appellant got over the first limb of his interlocutory injunction application, “the balance of…justice will always weigh in restraining the process” (Court of Appeal Transcript p. 123). This is because, as counsel put it, “obviously if the process goes ahead in front of a decision-maker that is biased, then by definition there is irremediable prejudice”.

182. Thus, the appellant having made out the case of a reasonable apprehension of bias, I am satisfied that the balance of justice weighs in favour of restraining the impugned process here. Whether to grant relief?

183. There remains, however, the issue of the appellant’s contempt of court, an issue raised by the respondents in the appeal. They say that there is a real question as to whether a litigant in the appellant’s position with his history of contempt of court “gets to pick and choose how and when he gets to invoke the Court’s protection and jurisdiction”. They say that it is for this Court to consider whether the administration of justice and the necessity for compliance with court orders has a bearing on the outcome of the present appeal in the face of the appellant’s contempt of court.

184. The appellant has come to court seeking equitable relief. The maxims of equity are too well known to warrant their recital here save to say that chief among them is that those who seek equity must do equity and must come to court with clean hands. The first thing to be observed is that the appellant was brought to court for the hearing of the within appeal from the prison in which he was being held because of his ongoing contempt of court. It is fair to say that the appellant, who is seeking equitable relief from the Court, comes to court as someone who has an established history of not obeying court orders made against him in the 2022/4507P proceedings. Whilst at the time of the hearing in the High Court of the interlocutory application in June and July 2023 the appellant was not in prison (having been released in the Summer of 2023 despite not having purged his contempt) he likewise stood before the court below as a litigant who had by then a significant history of not abiding court orders. Ultimately, the High Court did not have to grapple with this issue for the reasons already set out.

185. The relevant history of the appellant’s contempt up to the Summer of 2023 is set out at para. 26 of the High Court judgment and I duly adopt that history: - “At the hearing, the contempt relied upon by the defendants was Mr. Burke's refusal to comply with Court Orders made by Stack and Barrett JJ in the proceedings issued by the school against the plaintiff (Record no. 2022/4507P). In those proceedings an interim order was granted by Stack J restraining Mr. Burke from attending at the school and from attempting to teach any classes. Notwithstanding this Order, Mr.

Burke continued to attend the school and the school then made an application to attach and commit the plaintiff for breach of the Order. O'Regan J made an attachment Order on the 2nd September 2022 and, on the 5th September 2022, Quinn J committed Mr. Burke to prison for his breach of the Order of Stack J. Barrett J then made interlocutory orders on the 7th September. Mr. Burke refused to purge his contempt and refused to indicate that he would stay away from the school or comply with the Order of Barrett J. His detention for contempt was reviewed on the 13th December 2022 and he refused to purge his contempt.

The matter was relisted by this Court for mention on the 16th December for the purpose of asking the parties to address it on the question of Mr. Burke's continued detention in light of the fact that the school would be closing for the school holidays. It was then listed for the 21st December. This is dealt with in a ruling of O' Moore J of the 21st December 2022 [2022] IEHC 719 in which O'Moore J released Mr. Burke from detention. On the 5th January 2023, when the school reopened after the school holidays, Mr. Burke once again attended at the school and did so again on the 6th, 9th and 10th January 2023.

Following the hearing of Mr. Burke's motion for an interlocutory injunction to restrain the board of management from holding its disciplinary meeting (which is the subject of my earlier judgment ([2023] IEHC 22)), Mr. Burke declined to take the opportunity given by the Court to indicate that he would comply with the Court Orders. On the 26th January 2023, O'Moore J gave a judgment ([2023] IEHC 36) on a further motion for attachment and committal (or in the alternative sequestration of Mr. Burke's assets) issued by the school. He found that Mr. Burke had “on the 5 th, 6th and 9th January 2023 breached the Order of Barrett J, and did so consciously, deliberately and therefore wilfully.” He went on at paragraph 31 to say that “It is clear that Mr.

Burke does not recognise the validity of the Order of Barrett J, and that Mr. Burke intends to continue to go to school in defiance of what this Court has directed…At hearing of the motion on the 17th of January, Mr. Burke gave no reason to believe that he would comply with the Barrett Order. On the contrary, everything put before the Court by Mr. Burke himself in evidence and in submissions make it plain that he will continue to disobey the Order made by Barrett J on the 7th September 2022. The continuing contempt of court on the part of Mr. Burke therefore requires further measures to be taken.” O'Moore J imposed a daily fine, to apply until Mr.

Burke purged his contempt, to take effect later in order to give Mr. Burke an opportunity to tell the Court that he would comply with the orders. The Court of Appeal heard Mr. Burke's appeal against a number of Orders of the High Court, including the Orders of Stack J and Barrett J in February 2022. At that time Mr. Burke had not purged his contempt as is clear from the judgment of the Court of Appeal.”

186. By a judgment handed down on 19 May 2023 ([2023] IEHC 288), the High Court (Owens J.) granted the Board of Management of the School a permanent injunction against the appellant prohibiting him from entering the School premises. By decision of 8 September 2023 ([2023] IEHC 528), the High Court (Heslin J.) decided to imprison the appellant indefinitely in circumstances where he had attended at the School premises at the commencement of the 2023/2024 academic year. The Court understands that the appellant was released from prison by the High Court (Sanfey J.) on 28 June 2024 despite not having purged his contempt in circumstances where the School was closed for the Summer holidays. On 2 September 2024, the appellant was again imprisoned by the High Court (Michael Quinn J.) in circumstances where at the commencement of the 2024/2025 academic year he had again breached the prohibitory injunction directing him to stay away from the School.

187. The Court takes judicial notice of the fact that since the hearing of the within appeal, the appellant has again been released from prison. The rationale for the appellant’s release from prison is set out in the judgment of Nolan J. delivered on 20 December 2024 ([2024] IEHC 746) (a judgment delivered after the within appeal hearing). He has not, however, purged his contempt.

188. As is also clear from the history just recited, the appellant previously sought equitable relief from the court, namely an injunction to restrain the Board of Management from holding a disciplinary meeting. The High Court (Dignam J.) refused that application ([2023 IEHC 22). Whilst he found that the appellant had made out a strong case, Dignam

J. held that the appellant was disentitled to equitable relief due to his contempt, stating: - “…the defendant’s conduct, if it persists, is such that the Court must exercise its discretion to refuse to grant the equitable relief sought, even if he otherwise established a basis for securing that relief. In my view, of the two maxims, the more important at this present point is that he comes to equity must do equity. The obligation to come with clean hands generally refers to past conduct and, while the Court may be entitled to refuse the relief on the basis that the defendant had previously breached Court Orders and been found to be in contempt, I am going to focus on the defendant’s future conduct. In my view it would not be a proper exercise of the Court’s discretion to grant an injunction if the defendant persists in his refusal to comply with the previous Court Orders. Taking account of all of the factors, it would be entirely inimical to the proper administration of justice, the public interest in the enforceability of Court Orders to the benefit of society, the right and interest of the plaintiff to have Orders obtained by them enforced, and would therefore be inequitable if the defendant could secure such relief while refusing to comply with Orders, which as of now, are valid and subsisting.” (para. 111)

189. The appellant’s contempt has also been an issue of concern for this Court. When his appeal of the orders of Stack J. and Barrett J. came before the Court his contempt was raised by the Court of its own motion. In that regard, in the course of his judgment in Board of Management of Wilson’s Hospital School v. Burke [2023] IECA 52, Birmingham

P. stated: -

“This appeal was listed for hearing on 16th February 2023. In the usual way, the members of this Court to which the appeal was assigned read the papers in advance in order to prepare for the appeal hearing. At that stage, it appeared to the members of the Court that the appellant would be seeking orders from the Court in his favour, while persisting in disobeying court orders already made in favour of the school. This Court felt that this raised serious questions as to how the Court should proceed and whether it should embark on the hearing of the appeal. The matter was listed on Monday 13th February 2023 for mention. At that stage, the attention of the parties was drawn to the fact that the Court had concerns about whether it would be proper to embark on a hearing of the merits of the appeal, in circumstances where the appellant would be seeking to invoke the jurisdiction of the Court and to secure orders in his favour, while refusing to submit to the jurisdiction of the Court and insisting on an entitlement to disobey court orders. We pointed out that the issue of how a court should deal with somebody invoking its jurisdiction who is in contempt of court was a matter that had received consideration by Dignam J. in the course of this controversy. As Clarke J., as he then was, commented in Moorview Developments v. First Active [2008] IEHC 211, ‘[i]t is worth noting that the question of giving audience to persons in contempt involves the exercise by the court of a discretion in which ensuring obedience to court orders is afforded a very significant weight.’”

190. In the event, the Court did embark on the hearing of the appellant’s appeal on the basis that he was not seeking positive orders.

191. In her judgment ([2023 IECA 52) in respect of that appeal, Whelan J. observed of the appellant: - “It is very evident from his stance and demeanour before this Court in the course of the appeal hearing that he is disposed to comply only with the orders that he agreed with and is disposed to defy orders on a continuous and sustained basis as he may find disagreeable.”

192. The respondents’ written submissions to this Court recite the history of the appellant’s contempt much as outlined above and, as I have said, they say that it is a matter for the Court.

193. The appellant’s written submissions did not address his contempt. However, in his oral response to the respondents’ submissions, he advances essentially four arguments as to why the issue of his contempt should not preclude the grant of the relief he seeks. Each are addressed in turn although not in the sequence the appellant articulated them.

194. The first argument is that that the within proceedings are separate to the proceedings in which the issue of contempt arose. In their submissions, the respondents say they are not aware of any authority to the effect that the consequences of a person’s contempt are confined to the litigation in which the relevant orders are made. I agree with the respondents. Whilst the within proceedings are different to those in which the contempt orders were made and, indeed, whilst the respondents to the within appeal were not a party to those proceedings, in my view, the appellant is not entitled to compartmentalise his contempt in the manner he seeks.

195. In the court below, when considering the respondents’ preliminary argument that the appellant’s application for injunctive relief should not be heard at all, the Judge duly noted that the orders in respect of which the appellant was alleged to be in contempt were obtained by a different party in separate proceedings. The Judge described this “an important point of distinction” between the application that was before him and the proceedings which gave rise to the contempt orders. Nevertheless, he properly observed that a contempt order is “a contempt of the system of justice which is enshrined in the Constitution”.

196. Whilst the distinction identified by the Judge may be a factor (whatever its weight) which weighs in the appellant’s favour, it cannot have the effect, as the appellant would seem to suggest, of debarring this Court’s consideration of his contempt. In circumstances where a court would be entitled to consider the fact that a litigant seeking equitable relief is in breach of any court order, the appropriateness of doing so must be even clearer when the orders in question arise out of matters connected with the subject matter of the litigation in which the equitable relief is sought.

197. The appellant’s second argument is that “these Court of Appeal proceedings are of particular public importance” (Court of Appeal Transcript, p. 156). The first observation I would make is that in circumstances where there was no disagreement between the parties on the law relating to objective bias, no question of public importance can be said to arise regarding that aspect of the case. Insofar as any issue of public importance can be said to arise in this appeal, it must surely pertain to the public interest in ensuring the observance of court orders and the fact that the appellant is seeking relief from the Court in the face of his established history of contempt of court and the fact that he has not purged his contempt.

198. The third and fourth bases which the appellant puts to the Court as reasons for the Court not to refuse him relief relate to his right of access to the courts (which the Court accepts is enshrined in the Constitution and is therefore a weighty matter) and his contention that he had made out not just an arguable case but a strong case that the Judge fell into serious error. It is the case that I have has determined the substantive issue on the appeal in the appellant’s favour and this, therefore, must have a substantial bearing on whether relief should be granted to the appellant.

199. Before further addressing the parties’ respective positions, it is necessary to say something about the position of a contemnor in Irish law. The issue was addressed in Shell Ireland v. McGrath [2006] IEHC 108 where Finnegan P. citing, inter alia, Bettinson v. Bettinson [1965] 1 All ER 102 and Hadkinson v. Hadkinson [1952] 2 All ER 567 stated: - “There is a well settled rule that the Court will not entertain an application by a person who is in contempt of Court until he has purged himself of that contempt.”

200. Hadkinson v. Hadkinson concerned a wife who had been granted custody of her child on condition that she was not allowed to remove the child from the state without the leave of the court. She remarried and subsequently removed the child from the state. The father sought an order for the return of the child and obtained such. The mother then tried to appeal the order. A preliminary objection was raised by the father’s counsel that her appeal should not be heard to which the Court of Appeal acceded. Romer L.J. found that the mother committed contempt of the grossest kind and stated no application of the contemnor would be entertained until the contempt was purged. The approach of Denning L.J. was less stringent. He considered that contempt was not an absolute bar to a party being heard. Denning L.J. considered it “a strong thing for a court to refuse to hear a party to a cause and it is only to be justified by grave considerations of public policy. It is a step which a court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing his compliance.” In Hadkinson, the court refused to hear the appeal until the child was returned.

201. In E v. F [2011] IEHC 229, the wife sought (relying on, inter alia, Hadkinson) to have her ex-husband’s application for a review of maintenance dismissed in liminie on the basis of his breach of previous court orders. Abbot J.’s approach was to consider the issue from the perspective that “there is a constitutional right of access for a litigant to the court.” That constitutional right, however, had to be viewed “in the light of the inherent power of the courts established under the Constitution and under Statute to prevent the abuse of the court’s own process.” Without relying on any English authorities, he held that “it is possible to deduce a power of the court to dismiss an application such as that being made by the ex-husband in this case…by reason of his conduct which could be regarded as a contempt of court insofar as he has flagrantly breached the order which he now seeks to be reviewed.” Although having concluded that there was jurisdiction to dismiss in liminie for conduct amounting to contempt, Abbot J. did not accede to the wife’s application on the basis that the ex-husband had established new circumstances such that the court should give him one last chance to proceed with his application. He considered that the application to dismiss the ex-husband’s application in liminie should be adjourned generally with liberty to re-enter and that in the event of it being re-entered, “an application should be made in tandem with it to have the proceedings proceed as undefended as between the ex-wife and the ex-husband so that the process of the court may be protected against any further abuse by the ex-husband…”

202. The Hadkinson jurisdiction was referenced by the appellant in his appeal in Board of Management of Wilson’s Hospital School v. Burke [2023] IECA 52 (a decision to which I have already referred) in the context of the Court’s assessment as to whether it should embark on the hearing of his appeal from a number of orders of the High Court. There, the appellant argued that restrictions that have been applied in respect of those who have been found to be in contempt of court should not prevent access to the court for the purpose of appealing and seeking to set aside the order on which the alleged contempt was founded.

203. In his judgment, Birmingham P. considered it to be beyond doubt that that the appellant was entitled to appeal the finding that he was in contempt of court. However, it did not appear to Birmingham P. that that was what the appellant was in fact engaged in. He accepted however that there was an overlap between the issues that led to the

conclusion that the appellant was in contempt of court and the issues he wished to canvass on the appeal. As Birmingham P. explained, what had happened in the past would not prevent the Court from embarking on the appeal, rather the concern of the Court “was with what would happen in the future, while the matter was before this Court, including any period after judgment had been reserved and when the matter was being considered by the Court.” In any event, on the basis that the appellant was not seeking positive orders but rather seeking to set aside orders that had been made, the Court proceeded with the hearing of the appeal. It was emphasised, however, by Birmingham P. that the Court “would not consider any request for positive orders which would be sought to be enforced while the appellant continued to breach court orders on an ongoing daily basis.” (para. 21).

204. Undoubtedly, the approach of this Court in Board of Management of Wilson’s Hospital School v. Burke was informed by the dictum of Clarke J. (as he then was) in Moorview Developments Ltd. v. First Active [2008] IEHC 274 (indeed cited by Birmingham P. at para. 17 of his judgment), “[i] is worth noting that the question of giving audience to persons in contempt involves the exercise by the court of a discretion in which ensuring obedience to court orders is afforded a very significant weight.”

205. Of course, for the purposes of the present consideration, the position is that the appellant has had his right of audience in this Court and, as we see, he has succeeded in persuading the Court that a reasonable apprehension of objective bias arises by reason of Mr. Christie’s presence on the disciplinary panel scheduled to hear his appeal against his dismissal. The question, however, is whether the appellant’s continuing contempt of the court orders in the proceedings bearing record no. 2022/4507P (Board of Management of Wilson’s Hospital School v. Burke), for which he has been imprisoned on more than one occasion (the appellant has spent over 500 days in prison, at various intervals, up to his release in December 2024), and in respect of which he is currently the subject of daily fines, is a basis upon which this Court should refuse him the relief he seeks. When he previously sought equitable relief in the 2022/4705P proceedings, his failure to confirm to that he would abide the orders of the court was considered by Dignam J. to be a valid basis to exercise his discretion not grant the appellant the relief he sought.

206. It is apposite to say a few words about the discretion with which the court is vested. It was described by Clarke J. (as he then was) in Sister Mary Christian & ors v. Dublin City Council (No. 1) [2012] IEHC 163, [2012] 2 I.R. 506, albeit in the context of judicial review proceedings, when discussing the discretionary nature of an order for certiorari. He stated: “[I]t seems to me that the term ‘discretion’ can perhaps be misleading in this context. It is not that the court can decide simply to decline to make an order. Rather, the term ‘discretion’ is designed to convey that the existence of the set of circumstances necessary to allow the court to reach the conclusion that an order might be made does not, of itself, necessarily give rise to an obligation on the part of the court to make the relevant order.” Given that here too we are in the territory of discretionary remedies, the fact that the appellant has made out his case to the requisite standard of a reasonable apprehension of objective bias, does not, as he would appear to suggest, necessarily mean that the remedy he seeks should follow.

207. In the exercise of its discretion in this case, I consider that the Court must strive to strike a balance between two fundamental principles, namely the importance of protecting the right of access to the courts (including that of a contemnor) and the equally important need to ensure that the effective administration of justice is not impeded by the breach of court orders, in circumstances where a committal order is viewed by the courts as not only a means to address defiance of a specific order but as a means by which the courts protect their authority, contempt being viewed as an affront to the entire legal process itself.

208. As to the second of these principles, as Clarke J. stated in Moorview, ensuring obedience with court orders should be afforded “very significant weight” and, accordingly, I afford very significant weight to this factor.

209. What then of the appellant’s right of access to the courts, and perhaps what might be described as the expectation of any successful litigant that if they persuade the court of the merits of their argument they should be entitled to the relief they seek? Here, the appellant has made out his case on objective bias. The fact that the appellant has been successful is equally a weighty factor in favour of granting him the relief he seeks, and I accord it the requisite weight.

210. There are weighty factors on each side of the scale. Conscious that the overarching purpose of the remedy which the appellant is seeking here is to serve the interests of justice, I consider that it is necessary to look at the position for the appellant if the Court were to exercise its discretion in favour of refusing the relief he seeks.

211. The appellant comes before the Court as someone who has appealed his dismissal from his employment as a teacher in the School. Undoubtedly, he has appealed against his dismissal in an endeavour to safeguard his livelihood and his employment prospects in circumstances where he considers that he should not have been dismissed. As Barr J. opined in C.D. v. The Board of Management of a National School [2019] IEHC 819, “short of a conviction for an indictable offence, being dismissed from one’s job is probably the most serious consequence that a person may have to face in their life.” (para. 106). The merits of the appellant’s dismissal are a matter for another day. The salient issue here is that he has invoked the right of appeal provided for in the Circular.

212. The internal appellate process provided for in the Circular from a Stage 4 dismissal is to a Teachers Disciplinary Appeal Panel and the appellant having appealed, such a panel (the DAP) was appointed by the Board of Management as required by the Circular. If the Court does not grant an order restraining the respondents from holding a hearing of the DAP as presently constituted, then there remains the prospect that the appellant will have to face the DAP as it presently stands notwithstanding that he has made out a case that there is fair question to be tried (and indeed a strong case) of a reasonable apprehension of bias by the fact of Mr. Christie’s presence on the DAP. As the Judge acknowledged at para. 79 of his judgment, “a decision-making process which is tainted by objective bias and which nonetheless proceeds must be said to have gone irremediably wrong.” Indeed, the respondents do not demur in this regard, themselves acknowledging, in the course of their submissions to this Court on the issue of the balance of justice, that “if the process goes ahead in front of a decision-maker that is biased, then by definition there is an irremediable prejudice” (Court of Appeal Transcript, p. 123).

213. On the other hand, if the Court exercises its discretion in favour of granting the relief the appellant seeks then he will presumably face a newly constituted disciplinary appeals panel in the context of his appeal against his dismissal, and matters will, presumably, take their course pursuant to the dictates of the Circular.

214. Returning now to the respondents’ contention that the effective administration of justice and the necessity for compliance with court orders should have a bearing on the outcome of the within appeal, it is of course trite to say that the Board of Management has not had the benefit of compliance by the appellant with the injunctive relief it has obtained against him in the 2022/4507P proceedings. The Board has had to have recourse to the courts on numerous occasions to seek such compliance, as is evident from the myriad judgments and orders that those proceedings have spawned. The Board’s efforts have resulted in the High Court ordering the appellant’s imprisonment on more than one occasion and the imposition of daily fines on him. The daily fines were first imposed by Order of the High Court (O’Moore J.) on 26 January 2023 ([2023] IEHC 36). The initial fine of €700 per day now stands at €1,400 per day pursuant to the Order of the High Court (Nolan J.) of 20 December 2024 ([2024] IEHC 746). In a judgment delivered on 21 February 2025 ([2025] IEHC 104) (again delivered after the hearing of the within appeal) in the context where after his release from prison in December 2024 the appellant was again continuing to attend at the School following its reopening on 6 January 2025 after the Christmas holidays, Nolan J. reiterated the view he had earlier expressed in his 20 December 2024 judgment that the time had come to consider alternative methods to ensure the appellant’s compliance with court orders. By Order of the High Court (Nolan J.) of 25 March 2025, monies standing in the appellant’s bank account were attached in the sum of €79,100 to answer (in part) the fines imposed on the appellant by the High Court which he had not paid. The daily fine of €1400 imposed on the appellant continues. In addition to all of that, a receiver was appointed by the High Court (Nolan J.) on 18 March 2025 over the monies which the appellant is in receipt of by way of paid administrative leave. The history of the foregoing is set out in the two judgments Nolan J. just referred to, and in a further judgment of Nolan J. delivered on 9 April 2025 ([2025] IEHC 208). It is also clear from the latter judgment that the appellant continued to attend at the School on various dates in February 2025.

215. The appellant is paying a high financial price for his refusal to abide the orders of the court, which, it has to be said, he has brought upon himself.

216. Insofar as the appellant’s contempt of court remains ongoing, the Board may indeed be required to seek further orders. As the numerous orders committing the appellant to prison and providing for the imposition of fines and the other measures taken by the High Court demonstrate, the High Court has not been (and presumably will not be again, if the need arises) slow to protect that Court’s authority and thus assert the primacy of the rule of law.

217. Undeniably, the within proceedings have a close link to the 2022/4507P proceedings in which the contempt orders against the appellant arise. However, it is important to bear in mind that the appellant’s complaint in the within proceedings relates to a third-party body (the DAP) which has been established to adjudicate on the issues of dispute which arise between the appellant and plaintiff (the Board of Management) in the 2022/4507P proceedings. Hence, the respective subject matter of each proceeding is not so closely intertwined with the other such that the appellant’s egregious behaviour in the 2022/4507P proceedings should necessarily be the prevailing factor in the consideration of whether relief should be granted in this case.

218. It should also be borne in mind that the root of each of the proceedings lies in the Board of Management’s decision of 20 January 2023 to dismiss the appellant for serious misconduct. Whilst the Board is not a party to the within proceedings, it is not unreasonable to assume that the Board, the School and the respondents have as much interest as the appellant in ensuring that the appeals process provided for in the Circular should run its intended course.

219. The focus of the appellate process provided for in the Circular should be on the merits of the case the appellant wishes to put to the DAP and not on the composition of the DAP or any question mark that might overhang its composition following the decision of this Court. If, however, the relief the appellant seeks is not granted and the DAP remains as presently constituted, then short of Mr. Christie’s voluntary recusal, there is a substantial risk that appellate process is likely to be overshadowed by the fact that the appellant is facing a body in respect of which he has made out a case of objective bias, with all the implications that may bring, were the appellant, if he is not successful in his appeal, to challenge that outcome in the future.

220. There is a further relevant consideration. Unquestionably, the appellate process provided in the Circular is the appropriate forum for the appellant to advance his case that his dismissal from his post was not warranted. It is thus not just highly desirable but imperative that the appeal currently before the DAP is heard. For the sake of all concerned, the forum in which the appellant will make his appeal against his dismissal should be, and be seen to be, the embodiment of the “acceptable procedures” to which the Circular refers. As the Circular states: “The essential elements of any procedures for dealing with disciplinary issues are that they be rational and fair…” Absent the granting of the relief the applicant seeks, if the DAP remains as presently constituted, then a question mark will overhang the “fair” procedure to which the Circular aspires, by reason of this Court’s findings on the objective bias issue.

221. By reason of the considerations just mentioned, and having weighed the factors to which I have earlier referred, notwithstanding that the appellant has not abided the maxims of equity, in the exceptional circumstances of this case I consider that it would better serve the interests of justice for all involved to grant the relief sought by the appellant, particularly in the face of the accepted “irremediable prejudice” he faces if his appeal against his dismissal proceeds before the DAP as it is presently constituted, as described earlier. As said by Lord Nicholls in Polanski v. Condé Nast Publications Ltd. [2005] UKHL 10: “It may seem unattractive that a person can, at one and the same time evade justice in respect of his criminal conduct and yet seek the assistance of the courts in protection of his own civil rights. But the contrary approach adopted in the name of the public interest, would lead to wholly unacceptable results in practice…such harshness has no place in our law…” Although said in an entirely different context, the words of Lord Nicholls that harshness has no place in the law resonate here.

222. It will be immediately apparent that the approach taken by this Court in granting the appellant interlocutory injunctive relief is at odds with the outcome of the application he made to Dignam J. in the 2022/4507P proceedings where Dignam J., although finding that the appellant (much as he has here) had satisfied the first limb of the injunctive relief he was seeking, nevertheless considered that it would not be a proper exercise of his discretion to grant the appellant relief in the face of his stated intent to breach the orders the Board of Management had secured against him. I can well understand the approach taken by Dignam J. and were it not for the factors to which I have alluded to above, the appellant would be leaving this Court empty-handed. I wish to emphasise that the decision of the Court to grant the relief being sought is not to be seen as the Court condoning the appellant’s egregious contempt. Far from it. The Court is exercising its discretion to grant the appellant relief secure in the knowledge that the courts have measures at their disposal to mark the appellant’s ongoing contempt and, as we see, the courts have not been shy in utilising such measures so as to ensure the primacy of the rule of law.

223. Accordingly, whilst I consider the appellant’s contempt no less egregious now than it was when he was before Dignam J. in the 2022/4507P proceedings, as I have said the distinguishing feature of the present case is the spectre of unfairness that will hover over the appeal process before the DAP if the appellant has to face that body as presently constituted given that he has made out a case of a reasonable apprehension of objective bias.

Summary

224. For the reasons set out, I would allow the appeal and grant (albeit with a great deal of reluctance) an interlocutory injunction restraining the respondents from holding a hearing by the DAP as presently constituted of the appellant’s appeal against his dismissal.

Costs

225. As the appellant has been entirely successful in the appeal, it should in normal course follow that he would be awarded his due expenses and outlay as a successful lay litigant (whatever they might be). It should also follow that he would get his costs in the court below. But we are not in normal territory here. Whilst, therefore, the Court will set aside the costs order made against him in the court below, the decision of the Court is not to make a costs order in the appellant’s favour, either in this Court or the court below.

226. Pursuant to s. 169 (1) of the Legal Services Regulation Act, 2015, the matters the Court may take into account in directing that a party who is “entirely successful” should, nevertheless, not get their costs are “the particular nature and circumstances of the case” and “the conduct of the proceedings by the parties”. These matters include “the conduct before and during the proceedings”. Here, at the risk of repetition, the appellant’s egregious contempt of court in the 2022/4705P proceedings speaks for itself. Hence, there will be no costs order in his favour save an order setting aside the costs order made against him in the High Court.

227. As this judgment is being delivered electronically, Binchy J. and Butler J. have indicated their agreement therewith and with the orders I have proposed.