Hardly a week goes by, it seems, without at least one member of the Burke family from Co Mayo appearing in a courtroom.
The Castlebar family of unconventional high achievers are known for their strongly held evangelical Christian beliefs and socially conservative views. In recent times, some members of the family have come to prominence for their persistent public protests and legal challenges, and their disruptive courtroom appearances and forcible removals by gardaí.
While their legal complaints are the subject of significant public, media and legal interest, with at least one case resulting in a judgment of constitutional significance, the conduct of some members of the family in court – and the amount of court time some have taken up – has raised concerns.
The Burkes are no strangers to litigation. Since 2019, members of the family have been involved in litigation in the District, Circuit and High Courts, the Court of Appeal and Supreme Court, involving appearances before about 29 judges.
Their most significant case was a successful challenge by one of the 10 children in the Burke family, Elijah, who was represented by lawyers, to his exclusion from the 2020 Leaving Cert calculated grades scheme.
That case proceeded smoothly all the way to the Supreme Court. But two of Elijah’s siblings, Ammi and Enoch, have had markedly less success to date representing themselves in separate litigation. Their behaviour in court has attracted much criticism.
This week, there was something of an escalation in the Burkes’ labyrinthine legal battles when Ammi Burke, a qualified solicitor, made formal complaints to the president of the High Court, the Judicial Council and the Minister for Justice about Ms Justice Marguerite Bolger.
The complaints came after the judge rejected Ms Burke’s challenge to the dismissal by the Workplace Relations Commission (WRC) of her complaint alleging she was unfairly dismissed from law firm Arthur Cox. Another High Court judge, Mr Justice Garrett Simons, had previously rejected another challenge by Ms Burke related to the WRC’s handling of her complaint.
The behaviour of Ammi and Enoch Burke raises important issues concerning the courts’ management of disruptive litigants-in-person and the appropriate balance to be struck between a citizen’s constitutional right of access to the courts, the litigation rights of other parties and the power of the courts to control their administration and processes. It poses questions around whether and when the courts can or should intervene.
Several judges have publicly voiced concerns about the extent to which litigation involving the two Burkes is taking up expensive court time to the detriment of other litigants.
Disruptive behaviour by Enoch Burke and other family members in the Court of Appeal last February led to their removal by gardaí amid scenes of chaos never previously witnessed by this reporter during some 30 years reporting cases in the Four Courts
The dispute between teacher Enoch Burke and Wilson’s Hospital School in Multyfarnham, Co Westmeath, has to date come before at least seven High Court judges and three judges of the Court of Appeal since the litigation was initiated by the school last August. The court has yet to rule on the dispute, which stems from incidents following a request from the school’s principal last May to address a student transitioning genders by a new name and the pronoun “they”, to which Mr Burke objected.
He lost several pretrial applications before the full hearing of the dispute opened last March. He came close to a win when the High Court’s Mr Justice Conor Dignam said he would grant an injunction restraining a school disciplinary hearing against Mr Burke only if the teacher agreed to obey court orders to stay away from the school. When Mr Burke declined to do so, the injunction was refused.
That outcome underlines what several lawyers privately say: that Enoch Burke has an arguable case over the manner in which he was suspended by the school but his behaviour since, particularly his continuing attendance at the school, is a potential obstacle to the courts finding in his favour.
The courts take very seriously the principle of equity, that a litigant seeking relief must come to court “with clean hands”.
Enoch Burke’s behaviour at the outset of the full hearing caused a frustrated Mr Justice Alexander Owens to ban him from further physical participation in the hearing after he refused to agree to abide by the court’s rulings.
Disruptive behaviour by Enoch Burke and other family members in the Court of Appeal last February led to their removal by gardaí amid scenes of chaos never previously witnessed by this reporter during some 30 years reporting cases in the Four Courts.
After the Burkes twice disrupted the reading of the court’s judgment dismissing Enoch’s appeal over the orders to stay away from the school, the three judges left the bench. When the Burkes refused to leave the courtroom, they were forcibly removed by gardaí while shouting and clinging to court seats. The atmosphere was tense with an air of unpredictability.
Public order charges
The Court of Appeal incident led to public order charges against Simeon Burke, a law student. He denied the charges and was remanded in custody after refusing to sign a bail bond. Ammi Burke then went before three High Court judges before eventually securing an inquiry into the lawfulness of his detention.
Following persistent interruptions of the hearing last week, during which Ms Burke repeatedly talked over Ms Justice Marguerite Bolger and lawyers for the WRC and Arthur Cox, the judge found against Ms Burke
A fourth judge, Mr Justice Brian Cregan, ruled the detention was lawful after a day-long hearing during which Ms Burke repeatedly refused to accept the judge’s ruling concerning a procedural matter: who should be heard first in the application. Ms Burke, the judge observed, made the same argument some 36 times on that issue.
When the District Court hearing proceeded last month, Simeon Burke represented himself, lost and was fined €300 for the public order offence.
Ammi Burke’s behaviour when conducting her own High Court case over the WRC’s dismissal of her complaint of unfair dismissal from law firm Arthur Cox led to the rejection of her challenge. Following persistent interruptions of the hearing last week, during which Ms Burke* repeatedly talked over Ms Justice Marguerite Bolger and lawyers for the WRC and Arthur Cox, the judge found against Ms Burke. She described Ms Burke’s behaviour as “appalling”.
The disruptive nature of the continuing litigation in the superior courts involving Ammi and Enoch Burke exposes the limitations of the courts when faced with litigants who refuse to abide by their orders and rulings.
When confronted with very disruptive litigants, the usual recourse for the High Court is to invoke the civil contempt jurisdiction and address the problem through warnings, imprisonment and fines.
Those sanctions have been applied to Enoch Burke with no apparent success. He spent more than 100 days in prison before being released without purging his contempt of court orders to stay away from the school, and fines over his continuing contempt stand at about €70,000.
This kind of situation presents the courts with an impasse. Some legal sources suggest disruptive behaviour might be minimised by strict case management, including requiring agreement from the outset to conditions about behaviour and compliance with court rulings.
Sources are divided over whether the option of an “Isaac Wunder” order, a restrictive court measure which requires a litigant to seek court approval before further proceedings can be initiated by litigants deemed to be engaged in frivolous or vexatious litigation, is available as a remedy before the courts to manage Burke cases.
Dr Tom Hickey, associate professor at Dublin City University’s School of Law and Government, said the right to litigate and access the courts is constitutionally protected and “fundamental to the rule of law and to civilised society”.
Irish judges “have bent over backwards” to vindicate the right and “would not allow it to be denied or diminished just out of a sense of exasperation, for instance, or on the basis of any personal or emotional motivation”, he said.
The right to litigate is “not unlimited”, says Dr Hickey, and must be balanced against other considerations, including the rights of opposing parties and the need for the court system to function effectively and expeditiously in the public interest.
Irish judges have limited the right to litigate in various ways over the years, “using their so-called ‘inherent jurisdiction’, a set of powers flowing from their constitutional function of administering justice”, he says.
The difficulty appears to be that some members of the family ‘cannot abide by basic rules of court procedure, indeed, by basic norms of civil interaction, and to an extent that the courts in question just cannot practically proceed’
The power to strike out an action to prevent an abuse of the judicial process tends to be used in cases involving “frivolous” or “vexatious” claims, where a litigant pursues an entirely groundless claim or appears motivated by a wish to harass a defendant.
“The Burke claims, though they are many and varied at this stage, do not seem to fall into this particular category. Indeed, some of the Burke claims are anything but vexatious in this sense,” says Dr Hickey.
Elijah Burke’s case, he says, resulted in “perhaps the single most significant judgment ever handed down on the general question of judicial review of executive power in the Irish constitutional system”.
The difficulty appears to be that some members of the family “cannot abide by basic rules of court procedure, indeed, by basic norms of civil interaction, and to an extent that the courts in question just cannot practically proceed”.
As Dr Hickey sees it, from media reports of disorderly court hearings, “it would seem as though the courts just cannot carry out their constitutional function of administering justice in these cases”, he says.
“I am not aware of any case historically quite fitting that profile, at least not to this degree.”
Managing disruptive litigants: The Wunder option?
Isaac Wunder, an Irish man who claimed he had won prizes in sweepstakes draws and took many cases over years against the Irish Hospitals Trust in pursuit of prizes. They all were dismissed as groundless.
The Supreme Court, having examined its jurisdiction to control the administration of the courts, ruled in 1967 that Mr Wunder could take no further actions unless the court gave him permission to do so.
Isaac Wunder orders restrain parties from bringing further proceedings without prior court permission where a court is satisfied a person has habitually or persistently instituted frivolous or vexatious proceedings.
These orders are rare and are aimed at striking a balance between the right of access to the courts and the courts’ desire to prevent vexatious litigation or litigation that is an abuse of the courts process. They do not cut off access to the courts but make access contingent on the approval of a judge who has to decide whether the proposed litigation is vexatious.
Among those against whom Isaac Wunder orders were granted was the late Michael Wymes, co-founder of Bula Mines, who was involved in protracted court cases over decades, litigation that one judge likened to a Charles Dickens saga, related to the mining company’s collapse.
A more recent order was granted in June 2022 by the High Court’s Mr Justice Cian Ferriter against a former employee of the Kildare and Wicklow Education Training Board who made multiple complaints to various bodies including the WRC and Employment Tribunal and also took court proceedings as a litigant in person over her removal from her employment in 2015.
The order struck out all existing court and other proceedings by the woman and restrained her taking further proceedings in any court or other forum concerning her employment with the board unless she had High Court permission to do so. The decision marked the first time an Isaac Wunder order was extended to statutory tribunals and administrative bodies.
Senior counsel Bernard Dunleavy believes the option of an Isaac Wunder order may be available for persistently disruptive litigants who appear immune to contempt sanctions.
“The courts normally regulate the conduct of parties at the back end of litigation. That requires the litigants to abide by the social contract between the citizen and the court, to take heed of court orders and moderate their behaviour accordingly. When you have litigants who pay no attention to the social contract, the court has to consider whether to deal with such litigants at the front end and that is an Isaac Wunder order,” he says.
“All citizens have a right of access to the courts. If that is not exercised in a coherent and focused way that takes into account the rights of others to have their cases heard, the courts have to regulate that.”
* This article was amended on May 12th, 2023. A previous version of this story incorrectly stated Martina Burke also spoke over the judge and opposing lawyers.