A Co Westmeath school wants to recover from jailed teacher Enoch Burke an estimated €300,000 paid for the legal costs of the first year of their litigation saga.
A further eight bills of costs are being drafted concerning the litigation, now in its fourth year. Burke is also liable for €225,000 fines imposed by the High Court over non-compliance with orders to stay away from Wilson’s Hospital School.
On Tuesday, Barry Magee, chief legal costs adjudicator, heard the school’s costs recovery application relating to litigation from August 2022 to July 2023. His role is to determine reasonable costs and he hopes to give his determination in April.
Anthony McMahon, legal costs accountant for the school, said it was an “unusual” adjudication seeking only to recover “extremely reasonable” costs already paid by the school’s insurer which were “heavily discounted” from normal commercial fee rates.
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This is not about a “win” for the school, “there is no money here, no damages”, just litigation “that had to be endured”, he said. Conducted in “the glare” of media and social media commentary, the litigation involved multiple hearings, rulings, orders and “constant criticism” by Burke of the “smallest errors” in court documents.
What had started as an “ordinary employment law injunction” had, due to Burke’s non-compliance, become much more complex involving incarceration, sequestration of assets and extensive case law.
Eight more bills of costs are being drafted and High Court judge Brian Cregan is due to measure more costs on February 25th next, including of a receiver appointed by the court to collect the fines imposed on Burke, McMahon said.
The costs subject of the adjudication were incurred from August 2022, when Burke was suspended by the school pending a disciplinary process, up to a May 2023 High Court judgment upholding the lawfulness of the process leading to the suspension and July 2023 orders awarding costs to the school. The school later decided Burke should be dismissed but his appeal over the dismissal decision has yet to be determined.
Burke appeared on Tuesday via remote video link from Mountjoy prison where he is on a fifth period of imprisonment for civil contempt of court orders to stay away from the school.
He sought an adjournment of the adjudication pending the outcome of his “imminent” bid to get permission from the Court of Appeal to bring a late appeal over the May 2023 judgment. The litigation, he argued, stemmed from an “illegitimate instruction” from the then school principal to address a male pupil by the pronouns they and them and should never have been initiated.
After the adjournment was refused on grounds including the High Court had placed no stay on its July 2023 costs order, McMahon went through various items in the bill of costs. Some, not all, precise amounts paid over were read out.
Fee notes were marked at appropriate stages of the proceedings, and some were voluntarily reduced by 15 per cent, he said. The senior claims handler for the school’s insurer and his office had approved them.
Some work was done in urgent circumstances as the school term was about to start and the work involved pre-trial hearings and decisions on interim applications and appeals before four different judges prior to the May 2023 judgment. Some hearings involved imposition of fines on Burke and his committal to prison.
A sum of €101,872 sought for work in progress prior to the May 2023 hearing was reduced by the insurer to €78,061, the accountant said.
Asked by Magee why two senior counsel were engaged, McMahon said that was due to the complexity and number of hearings with some held at short notice in the morning and evenings.
The two seniors were paid a lower rate than the norm, their brief fees were €25,000 each, plus refreshers, and junior counsel’s brief fee was €12,000. In his view, those fees were “fine”. There was no charge for 241 hours work done by legal trainees, McMahon said.
