Court urged to mark disapproval of Ammi Burke’s conduct through legal costs order

Solicitor Ammi Burke must be furnished with a transcript of the aborted hearing of her failed action against the Workplace Relations Commission (WRC) before the court decides who should pay the parties’ legal costs.

Ms Justice Marguerite Bolger directed the WRC and notice party Arthur Cox – from which Ms Burke was dismissed in late 2019 – to ensure a transcript is emailed to her this week to consider ahead of the resumed costs hearing in October.

The costs hearing, scheduled to last half an hour on Friday morning, ended amid persistent protestations from Ms Burke, who accused the court of receiving the “private” transcript “on the sly”.

The judge asked Ms Burke to refrain from using language such as “treachery”.

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That Ms Burke had not received a copy of the transcript, which had been arranged and paid for by Arthur Cox, came as a surprise to Ms Justice Bolger. She said it was not the practice of the court to accept a copy without all parties receiving it.

Peter Ward SC, with Mairead McKenna SC, for Arthur Cox, said Ms Burke was invited in February to share the costs of employing a stenographer during the hearing, as is typical in court cases, but this offer was not accepted.

The WRC and Arthur Cox are asking the court to order Ms Burke to pay all of the costs they incurred in having to meet her High Court challenge to the WRC’s rejection of her unfair dismissal claim.

Ms Justice Bolger dismissed the case mid-hearing last May, as Ms Burke engaged in a “blatant abuse of the court process”. Her behaviour was “unprecedented”, and her “scripted mantra of objections” to a decision the judge made “appeared to be designed solely to collapse the hearing”.

Catherine Donnelly SC, for the WRC, on Friday urged the court to award her public body client its costs on a “legal practitioner and client basis”, which covers all reasonable costs incurred, even those that were not absolutely necessary.

Such an order would mark the court’s disapproval of Ms Burke’s conduct during the May hearing, said Ms Donnelly.

Ms Donnelly did not accept that Ms Burke’s case was of public importance but, even if the underlying proceedings had some publicly important claims, it was Ms Burke’s conduct that prevented them from being determined by the court.

Mr Ward said Arthur Cox agreed with the WRC’s submissions and sought the same orders. Ms Burke’s written submissions on the costs are an “attempt to relitigate” earlier decisions of the court, while elements are “inappropriate” and “absolutely unacceptable”, he added.

In her written submissions, Ms Burke said it is wrong for the WRC and Arthur Cox to seek punitive costs orders against her. Her proceedings raised “issues of manifest public importance regarding the operation of the WRC” and she “rendered a public service” in instituting her case, she said.

Orally, she told the court her case was dismissed through “unprecedented action” by the judge.

Ms Justice Bolger said she would not revisit her judgment, which Ms Burke can raise with a higher court if she wishes.

When Ms Burke referred to her “contemporaneous notes” from the May hearing, the judge queried if she had received the transcript, produced by a privately-hired stenographer, that had been provided to the court at the time.

Hearing she did not, Ms Justice Bolger asked if Ms Burke wanted to adjourn the costs hearing to receive the transcript.

Ms Burke accused the court of receiving the transcript “on a secret basis”. Further exchanges and interruptions ensued, before the judge adjourned the costs hearing to October.

Ms Justice Bolger refused Ms Burke’s request for an audio recording of the earlier hearing but granted her access to a transcript of the court’s digital audio recording, for which she will have to pay.

Ms Burke’s High Court judicial review was brought over a WRC adjudication officer’s rejection of her complaint that she was unfairly dismissed from Arthur Cox in November 2019 despite her having an unblemished record. The officer said the hearing could not continue due to persistent interruptions from the Burke family.

Arthur Cox denied she was unfairly dismissed, saying she received three months’ pay in lieu of notice and a €70,000 ex gratia payment. The firm accepted reviews of her employment were positive, but certain exchanges she was involved in led to a breakdown of trust and confidence.