2026 IECA 96

(3)of the Education Act 1998 provides that a board of management of a school: “. . . shall appoint teachers and other staff, who are to be paid from monies provided by the Oireachtas, and may suspend or dismiss such teachers and staff, in accordance with procedures agreed from time to time between the Minister, the patron, recognised school management organisations and any recognised trade union and staff association representing teachers or other staff as appropriate.”

1. The procedures dealing with suspension and dismissal of teachers are set out in Appendix 1 to the Department of Education and Skills Circular 0049/2018 (“the Circular”). In particular, the Circular sets out the powers and functions of school principals and boards of management and appellate bodies in the contractual disciplinary process and governs a placing of a teacher on administrative leave with full pay pending an investigation, or pending the outcome of an investigation, a disciplinary hearing or meeting or outcome of a disciplinary hearing or meeting.
2. At all material times, the appellant was employed as a teacher of German and History at the school. These proceedings concern his suspension by the respondent on 22nd August 2022, and his continuance to attend at the school thereafter.
3. In summary, the sequence of events is as follows: May 2022 Parents of a pupil at the school and the pupil requested that a change of gender identity be facilitated by addressing the pupil by a new name and the use of the pronoun ‘they’. 2 9th May 2022 The Principal sent an email to teachers advising of the social transition, of the proposed change of name and mode of reference to this pupil (“the direction” or “the Principal’s direction”). 10th May 2022 The Appellant objected to the email of 9th May 2022 on the basis that it was “wrong that this belief system would be forced upon students . . . [i]t is an abuse of children and their constitutional rights”. The Principal requested the appellant to make an appointment to see her. Staff meeting interrupted by the appellant’s objections to the email of 9th May
4. 18th May 2022 The Principal, Deputy Principal and appellant met, but no mutually acceptable modus operandi was achieved. 27th May 2022 Principal sent an email to the appellant reaffirming the direction of 9th May 2022, stating “I expect that you will communicate with this student in accordance with the wishes of the student and the student’s parents”. Appellant replied, indicating that he would not comply with the direction. 21st June 2022 A religious service in the school chapel, where the Church of Ireland Bishop of Kilmore was officiating, was interrupted towards the end by the appellant addressing the congregation in relation to the Principal’s direction. He requested that the Principal withdraw her “demand”. He ignored a request by the school Chaplain to desist, and he was interrupted by the Bishop who concluded the service. Pupils present for the service walked out of the chapel in protest at his remarks. A planned presentation to a retiring House Master did not take place in the chapel but rather was rearranged to take place on the school steps. After a dinner following the service, the appellant twice interrupted the school Principal in an agitated manner while she was socialising with guests . He repeated his request that she withdraw her “demand” or “request.” August 2022 The Principal prepared a report for the respondent, invoking Stage Four of the disciplinary process set out in the Circular. She explained in the report why she considered the appellant’s behaviour should be regarded as gross misconduct within the meaning of the Circular. 15th August 2022 The Principal handed a copy of her report to the Chairman of the respondent. The Chairman read out most of the report at a meeting of the respondent, attended by the Principal. The document was not circulated to other members of the respondent. The appellant was furnished with a copy of the report. The respondent arranged a disciplinary hearing for 14th September
5. The respondent decided to hold a hearing on 22nd August 2022 for the purpose of deciding whether it would place the appellant on paid administrative leave until 3 the disciplinary hearing. The respondent invited the appellant to attend. 22nd August 2022 The meeting of the respondent was attended by the appellant and his sister. The appellant was invited to address them as to why he should not be suspended. He did not do so, though he addressed the meeting for 35 minutes. The respondent terminated the meeting and deliberated on whether the appellant should be suspended. The respondent decided to suspend the appellant. 24th August 2022 The respondent notified the appellant in writing of its decision and its reasons for placing him on paid administrative leave. 25th August 2022 The appellant attended at the school premises. 26th August 2022 The appellant attended at the school premises. By letter dated 25th August 2022, the appellant was directed not to attend at the school while on administrative leave. The appellant replied, stating that he regarded his suspension to be unreasonable, unjust and unlawful. The respondent wrote, requesting the appellant to confirm in writing before 2pm on 29th August 2022 that he would cease to attend the school. If he would not so confirm, then the respondent would apply to court without further notice to him. 29th August 2022 The appellant attended the school premises and did not provide the undertaking sought. 30th August 2022 The respondent commenced proceedings against the appellant. The High Court issued an interim injunction restraining the appellant from trespassing on the school premises. 5th September 2022 Order committing the appellant to prison for failure to comply with the interim injunction of 30th August
6. 7th September 2022 Interlocutory order (Barrett J) restraining the appellant from attending the school premises or attempting to teach classes or students at the school. 12th September 2022 The appellant sought an injunction restraining the disciplinary hearing scheduled for 14th September
7. The respondent undertook not to proceed on that date. 21st December 2022 O’Moore J released the appellant from custody even though he had refused to purge his contempt. 5th January 2023 Appellant attended at the school. 6th January 2023 Appellant attended at the school. 4 17th January 2023 Second motion seeking the attachment and committal of the appellant. O’Moore J held that the appellant was in breach of the order and should be fined €700 for every day or part of the day that passes until he purges his contempt or until the relevant part of the order of Barrett J is vacated. 19th January 2023 Dignam J refused the appellant’s application for an interim injunction restraining the respondent from holding a disciplinary meeting. Disciplinary hearing was heard. The appellant was dismissed from his employment by the respondent with effect from 21st April
8. 2nd February 2023 The appellant appealed the decision to the Disciplinary Appeals Panel. 16th February 2023 7th March 2023 28th – 31st March 2023 19th May 2023 The appellant’s appeal of a number of orders of the High Court, including the interlocutory injunction granted by Barrett J, was heard. The Court of Appeal dismissed the appeal. Plenary trial of these proceedings before Owens J. 23rd August 2023 Order perfected. Judgment of Owens J. These Proceedings
9. The appellant has been involved in considerable litigation, all stemming from the events at the school in the summer of
10. It is important, therefore, to be clear as to the parameters of these proceedings in the context of the application before this Court.
11. The respondent commenced these proceedings by plenary summons on 30th August 2022, in the context of the decision to suspend the appellant and when the disciplinary hearing then scheduled for 14th September 2022 had yet to take place. The respondent sought the following reliefs: “
12. A declaration that the Defendant is on paid administrative leave pending the outcome of a disciplinary process.
13. A declaration that the decision to put the Defendant on paid administrative leave is lawful.
14. An injunction restraining the Defendant from attending at the premises of Wilson’s Hospital School for the duration of his paid administrative leave. 5
15. An injunction restraining the Defendant from attempting to teach any classes or any students at Wilson’s Hospital School for the duration of his paid administrative leave.
16. An injunction restraining the Defendant from interfering with the appointed substitute teacher’s duties and teaching.
17. An injunction restraining the Defendant from failing to comply with the directions of the Plaintiff Board.
18. An injunction restraining the defendant from trespassing on the property of Wilson’s Hospital School. 12.(sic) Damages for trespass.
19. (sic) Damages for breach of contract. 14.(sic) Interest. 15.(sic) Such further or other relief as this Honourable Court deems fit. 16.(sic) Costs.”
20. The appellant filed a counterclaim in response to this, a pleading not known to the procedures established by the Rules of the Superior Courts. He then entered an appearance on 14th September
21. The respondent filed its statement of claim on 19th October 2022 and sought the reliefs set out in the plenary summons. On 13th January 2023, the appellant delivered a defence and counterclaim. In his defence, he pleaded that the report submitted by the Principal to the Board, prepared pursuant to Stage Four of the Circular, was prepared in circumstances which deprived him of natural justice and fair procedures. At the meeting of 15th August 2022, which was attended by the Principal, the Board discussed the report in his absence, and he says that he was thereby deprived of natural justice and fair procedures. He pleads that the decision on 22nd August 2022 to place him on paid administrative leave was not lawful and was not in accordance with the Circular and was unconstitutional. He denied 6 that his entitlement to attend at the premises of the school was revoked and he denied that he had trespassed at the premises of the school.
22. He counterclaimed that his constitutional rights had been violated. He said the “demand” of the Principal, of 9th May 2022, was unconstitutional and that the disciplinary process, including the decision to place him on paid administrative leave, breached Article 40.6.1(i), Article 44.1 and Article 44.2 of the Constitution. He pleaded that the Principal’s report reached findings and conclusions without affording him any opportunity to respond, and accordingly, breached his rights to natural justice and to fair procedures. He sought declarations that the disciplinary process was in breach of and an unlawful interference with his rights under the Articles of the Constitution so cited, related declarations and an injunction restraining the holding of the disciplinary meeting scheduled for 19th January 2023, or from conducting any disciplinary or investigation process in respect of the appellant and from dismissing the appellant.
23. The trial commenced before Owens J on 28th March
24. In his judgment, Owens J recalled: “
25. On the first day of trial of this action, [the appellant] was disorderly and in persistent contempt of court. He was excluded from further participation, except on condition that he undertake to comply with rulings of this Court. During the hearing he was repeatedly contacted and advised that he was welcome to resume participation if he gave this undertaking. He chose not to respond or to make his intentions clear. As a result of this lack of clarity, some evidence and arguments addressed issues which do not require to be decided.”
26. The trial continued in his absence. The respondent led evidence to support its case, and the trial judge reserved judgment. 7 Judgment of the High Court
27. The High Court identified that there were two issues for determination. The primary issue was whether the respondent validly suspended the employment of the appellant as a teacher in the school on 22nd August
28. In order for the respondent to succeed in that claim, evidence must establish that it acted in substantial accordance with contractual obligations to the appellant in the steps which resulted in its decision to suspend him. The second issue was whether the respondent was entitled to a permanent injunction restraining the appellant from entering the school premises. If his entry into the school premises was trespass, the respondent was entitled to enforce its right to exclude him from the premises under its control and to use those premises without interference.
29. At para. 14, the High Court held: “
30. …The following matters are established by evidence: i. The school principal and Board acted in accordance with their obligations under [the appellant’s] employment contract in initiating and conducting the process which led to suspension of his employment as a teacher. ii. [The appellant] did not have consent of either the Board or the School to enter or remain within school buildings or grounds after he was suspended. He was asked to leave, and he refused to go. His repeated attendance on school premises was trespass. Any judicial finding that the Board broke the employment contract in suspending [the appellant] cannot affect this conclusion. He has no right to enter school premises.”
31. The High Court dismissed the appellant’s counterclaim as follows: 8 “
32. As [the appellant’s] counterclaim has not been advanced, any claims which he makes in it must be dismissed. These include his claim for an injunction preventing continuation by the Board of his suspension.
33. This counterclaim also included claims for declarations that the disciplinary process conducted against him was an unlawful interference with constitutional rights and that a report prepared by the school principal was compiled in breach of natural justice and otherwise than in accordance with an administrative circular governing disciplinary sanctions.
34. Dismissal of the counterclaim operates as a final determination of all other issues capable of being raised in answer to the Board's claim. It is unnecessary for this Court to determine claims by [the appellant] that the Board interfered with his constitutional rights.”
35. The High Court commenced its assessment of the validity of the decision of the respondent to suspend the appellant by considering the provisions of the Circular at paras. 38 to 43 of the judgment. Owens J held that the Circular set out the powers and functions of school principals and boards of management and appellate bodies in the contractual disciplinary process. Section 24

(3)of the Education Act 1998 was quoted in full: “

(3)A board shall appoint teachers and other staff, who are to be paid from monies provided by the Oireachtas, and may suspend or dismiss such teachers and staff, in accordance with procedures agreed from time to time between the Minister, the patron, recognised school management organisations and any recognised trade union and staff association representing teachers or other staff as appropriate.” Thus, a decision on suspension of a teacher is a function reserved for the board of management of a school. 9 17. The trial judge noted that there were, in effect, two disciplinary processes established in the Circular. The main one involves a four-stage disciplinary procedure, but there is an option to go straight to Stage Four of this process, as described under the heading ‘Gross Misconduct’. The High Court quoted the provision in full: “43. ‘In the cases of serious misconduct at work or a threat to health and safety to children or other personnel in the school the stages outlined above do not normally apply, and a teacher may be dismissed without recourse to the previous stages. The following are some examples of gross misconduct offences for which any or each of stages 1 to 3 of the disciplinary procedure may not apply, depending on the gravity of the alleged offence:• Theft • Deliberate damage to school property • Fraud or deliberate falsification of documents • Gross negligence or dereliction of duties • Refusal to comply with legitimate instructions resulting in serious consequences • Serious or persistent incapacity to perform duties due to being under the influence of alcohol, unprescribed drugs or misuse of prescription medication • Serious breach of health and safety rules • Serious abuse/misuse of the school's property/equipment • Serious breaches of confidentiality • Serious bullying, sexual harassment or harassment against an employee, student or other members of the school community • Violent/disruptive behaviour 10 • Downloading/disseminating pornographic material from the internet • Circulation of offensive, obscene or indecent e-mails or text messages. Note: The above list is not exhaustive. For the purposes of this section gross misconduct may also relate to an act which took place or allegedly took place outside the school where such act, or alleged act, gives rise to a serious concern on the part of the board of management in relation to the health and safety of students and/or staff of the school. If there is an allegation of serious misconduct, the teacher may be suspended on full pay pending an investigation and the conclusion of any appeal process. In the course of investigation the teacher concerned has the right to have the allegations brought to his/her attention and he/she has the right to respond to all allegations. If the investigation upholds a case of serious misconduct the normal consequence will be dismissal’.” [Emphasis added] 18. The High Court emphasised that a decision to suspend a teacher pending the conclusion of a disciplinary process is an interim measure and does not involve making any concluded finding of wrongdoing (paras. 49 and 50). At para. 51, the High Court considered the obligation on a board of management to take a view on whether suspension is or is not appropriate. The High Court continued: “51. …In considering whether a suspension is valid, a court can examine whether material before a board is sufficient to support a valid decision to suspend and whether that material has been properly and fairly presented to that board. 52. A board must come to a decision on whether to suspend without arriving at any conclusion on the result of an investigation or disciplinary process. The disciplinary issue must be sufficiently serious as to be capable of amounting to gross misconduct meriting dismissal if the charge is proved. If a board could not reasonably conclude 11 from materials presented for consideration that suspension is warranted, then a decision to suspend will not be valid.” Between paras. 54 and 87, the High Court described the events from 9th May 2022 to 19. 22nd August 2022 in detail and made the following findings of fact: • The Principal took the view that the appellant’s behaviour, as set out in the report, was gross misconduct. • She decided to invoke Stage Four of the disciplinary process. • The effect of this decision was procedural. The matter was brought directly to the respondent. • The Principal’s decision was made in good faith. • The Principal’s decision was rational. • She took relevant considerations into account. • The appellant’s conduct, the subject of her complaint, was capable of being considered as amounting to gross misconduct. • The report was her account of what happened. • Under the Circular, she was entitled to express her view on the appellant’s behaviour. • At para. 74, he held: “She was entitled to express a view that his behaviour at the staff meeting and his public challenge to ‘a reasonable and legitimate instruction to staff’ … ‘may amount to gross misconduct’. She was entitled to explain to the Board in detail the reasons why she considered [the appellant’s] behaviour should be regarded as gross misconduct.” • The Principal handed her report to the Chairman of the respondent on 15th August 2022. • The Principal forwarded a copy of her report to the appellant. 12 • The Principal attended the meeting in her capacity as Secretary of the respondent. • During the meeting on 15th August 2022, the Chairman read out most of the report, but it was not circulated to the other members of the respondent. • The Principal did not intervene in the meeting. • The respondent made administrative decisions - It arranged a disciplinary hearing for 14th September 2022. - It arranged a hearing for 22nd August 2022 to decide whether or not to place the appellant on administrative leave with pay until the disciplinary hearing. 20. - It invited the appellant to attend the meeting arranged for 22nd August 2022. - It authorised the chairman of the respondent to correspond with the appellant. The High Court held that the respondent acted properly in making its decisions on 15th August 2022, it convened meetings as part of the disciplinary process, and this did not involve any disciplinary determination adverse to the appellant. At para. 81, the trial judge held that the conduct of the appellant the subject of the Principal’s complaint, if proved, was capable of amounting to “gross misconduct” within the Circular. It was therefore not necessary for the respondent to consider whether it should not engage in the disciplinary process established by the Circular because there was no basis for same, as contended by the appellant. 21. The trial judge then assessed the lawfulness of the meeting on 22nd August 2022 and the validity of the decision to suspend the appellant reached at that meeting. The trial judge noted that the Principal had left the school by that stage and did not attend the meeting on 22nd August 2022. At paras. 92 to 99 of the judgment, Owens J described the meeting as follows: “92. At the meeting of the Board on 22 August 2022 [the appellant] was invited to make his case on why he should or should not be suspended. The Board gave him an 13 opportunity to address this issue over a period of 35 minutes. He did not avail of this opportunity. Instead, he insisted on raising issues which were not relevant to the purpose of the meeting. ... 99. The Board provided [the appellant] with a reasonable opportunity to state his case on why he should not be suspended. He chose not to avail of that opportunity. He ignored requests to address this issue. He was the author of his own misfortune. The eventual decision to curtail his further participation in the hearing was rational and justifiable.” 22. Having decided that the procedures adopted at the meeting were lawful, the court then considered the decision made by the respondent following the meeting at paras. 100 to 103: “100. The Board deliberated on whether [the appellant] should be suspended. This was fully discussed. There was no pre-judgment of the result. Comments made by individual members of the Board during interchanges with [the appellant] during the hearing which preceded this discussion cannot be considered as evidence of prejudgment. 101. The Board arrived at a consensus decision that [the appellant] should be suspended because of concern that if he were permitted to teach, he would engage in a repeat of his behaviour and that this would be damaging in the school. This decision and the reasoning of the Board was conveyed to [the appellant] by letter dated 24 August 2022. 102. There is no evidence that any relevant matter was not duly considered or that any irrelevant matter was considered by the Board in arriving at this decision. The Board was restricted because of legal advice that members could not discuss the substance of the allegations. However, the decision-makers knew enough about the 14 allegations and the relevant issues to make a valid decision on whether to suspend [the appellant]. 103. Considering what the Board knew about [the appellant’s] actions in the school towards the end of the previous academic year and his behaviour at the Board meeting, apprehension that he would engage in harmful and disruptive conduct if permitted to teach in the school was rational and reasonable. The Board was entitled to consider that [the appellant] did not address the issue of how he would behave in the school.” 23. Earlier, at paras. 88 and 89 of his judgment, the trial judge emphasised that bodies entrusted by law with decision-making powers are entitled to police their own procedures. Judicial oversight of the way these bodies conduct themselves is concerned with procedural fairness. Owens J carried out his assessment of the procedural fairness of the meeting of 22nd August 2022, and the decision by the respondent taken after the meeting, and he was satisfied this was lawful. Hence, his conclusion stated at para. 14(

1. i)that the school Principal and the respondent acted in accordance with their obligations under the appellant’s employment contract in initiating and conducting the process which led to the suspension of his employment as a teacher and, therefore, the decision was valid. 24. The High Court considered the issue whether the appellant had trespassed on the school premises in paras. 22- 32. Owens J held that the evidence demonstrated that mutual trust and confidence between the respondent and the appellant had broken down because of his actions, that he defied the respondent and the school by attending the school premises and that he defied court orders. Owens J held that an employee who has been suspended is not entitled to go into their workplace without permission. At para. 30 he held:- 15 “Any right of [the appellant] to enter the school premises is ancillary to his employment duties. Whether his suspension or dismissal were in breach of his contract of employment or not, the Board terminated his right to enter the school.” The High Court concluded that the respondent had sufficient possession of the school premises and facilities to maintain an action for trespass. Owens J noted that there were no discretionary reasons which could justify the withholding of relief and held that the appellant had trespassed on the premises. He awarded the respondent damages for trespass and a permanent injunction to prevent future trespass by the appellant, to continue unless and until the appellant is re-employed or reinstated as a teacher at the school. 25. The High Court granted the respondent the relief it sought and dismissed the appellant’s counterclaim. The order of the Court records that the appellant “was excluded from court on the 28th day of March 2023 because of his contempt of court except on condition that he undertake to obey the rulings of the court and elected not to further participate in the hearing of the action”. The court ordered that: “1. The Counterclaim of the Defendant do stand dismissed as said Defendant failed to advance same 2. The Defendant be restrained forthwith from entering or trespassing on premises at Wilson’s Hospital School in possession or control of the Plaintiff without the consent of the Plaintiff 3. The Court doth declare that the suspension of the Defendant by the Plaintiff from his post as a teacher in Wilson’s Hospital School pending final decision as to whether he should be dismissed for gross misconduct in accordance with his contract of employment was and is lawful 4. The Plaintiff do recover as against the Defendant damages in the sum of €15,000 in respect of trespass by the Plaintiff on premises at Wilson’s Hospital 16 School in the possession or control of the plaintiff together with the costs of the action for the declaration and injunction including all costs reserved to the trial of the action and of or incidental to the proceedings but excluding the costs of defending the counterclaim except for costs relating to any defence to counterclaim and notice for particulars arising from the counterclaim”. The order was perfected on 23rd August 2023. Events Subsequent to the Plenary Hearing 26. The appellant did not comply with the order of Owens J restraining him from trespassing on the school premises. On 5th September 2023, the respondent applied to the High Court for short service of a notice of motion for attachment and committal of the appellant. The appellant swore a substantial affidavit on 7th September 2023 in opposition to that motion. As is recorded in the judgment of Sanfey J delivered in these proceedings ([2024] IEHC 453), the appellant: “. . . alleged that ten judges of the High Court and three judges of the Court of Appeal had each ‘…consciously, deliberately and intentionally stripped and defrauded me of my constitutional rights to freedom of religion and freedom of conscience…’ [para. 29]; he averred that ‘…the order of Judge Owens, being plainly repugnant to the Constitution and unlawful, is invalid. Hence it is void ab initio, i.e. without legal effect, an absolute nullity from its inception’ [para. 31];’…this Court has no authority whatsoever, either moral or legal, to order [the reliefs sought in the notice of motion]’ [para. 32]”. 27. Heslin J heard the application for his attachment and committal and ordered that the appellant be detained until he purges his contempt and is discharged pursuant to further order of the court. The matter was listed before the judge in charge of the Chancery List to offer the 17 appellant an opportunity to purge his contempt on 3rd October 2023, 12th December 2023, 27th February 2024, 22nd March 2024, 14th June 2024 and 28th June 2024. The appellant at all stages declined to undertake to abide by the order of Owens J. 28. Instead, on 14th June 2024, the appellant brought an application to set aside the judgment of Owens J. The question whether the court could set aside the judgment and final order of another High Court judge was considered at a hearing on 28th June 2024. In his submissions to the court, the appellant denied that the application was a “proxy appeal” as described by counsel for the respondent. The appellant submitted to Sanfey J “I agree that merit based complaints, the natural course, is an appeal. That is not what’s before the court here. It’s a substantial issue of constitutional justice”. Judgment was delivered on this application on 19th July 2024. 29. At para. 45 of his judgment, Sanfey J records that: “45. The court asked [the appellant] why he did not appeal the judgment and order of Owens J. He appears to accept that if the ‘merits’ of the decision were an issue, an appeal would be appropriate, but contends that the present case is different because it involves ‘a substantial issue of constitutional justice’.” 30. Sanfey J noted that if the appellant had chosen to prosecute his claim that his constitutional rights had been breached, the balance between his asserted rights and those of the respondent could be assessed, particularly in circumstances where his claims of breach of his rights were utterly and completely contested. In circumstances where the appellant had conspicuously not followed this course, he concluded that there could be “no question of any alleged breach of his constitutional rights being so ‘truly exceptional’ that the court would have to consider whether it should have to intervene on [the appellant’s] behalf, notwithstanding that he chose not to do so himself”. 18 31. At para. 48, Sanfey J observed that the court would not review the decision of another High Court judge as: “It is certainly not to be countenanced in circumstances where a litigant has consciously chosen not to advance his claim at trial, and particularly where he has chosen not to appeal the impugned decision.” He observed that the appellant had no reasonable or plausible explanation as to why he did not avail of his right of appeal. At para. 53, the judgment concludes: “53. [The appellant] thinks that the order [of Owens J] is made in breach of his constitutional rights. However, it is a valid order of this Court, and [the appellant] will comply with it, or face the consequences. It is not open to [the appellant] to conclude unilaterally that the order of the court breaches his constitutional rights and is thus ‘void ab initio’, such that he does not have to comply with it. He does not get to pick and choose which order of the court directed to him that he will obey. He is being required to do no more than any other litigant – to obey the orders of the court. He has been imprisoned because he chooses not to obey the order of the court – the very same court which he now expects to come to his aid and uphold his allegations of breach of his constitutional rights, notwithstanding his refusal to contest the original trial or to appeal the judgment of the court.” 32. It is all the more remarkable, therefore, in the light of these statements that he was required to abide by the order of Owens J unless and until it was set aside on appeal, that the appellant did not bring an application to extend time to appeal that order following the delivery of Sanfey J’s judgment. 33. This omission is particularly striking because in 2024, the appellant appealed an adverse decision of the High Court in related proceedings entitled Enoch Burke v Seán Ó 19 Longáin, Kieran Christie and Jack Cleary Record Number 2023/3330 P. In those proceedings, the appellant sought to restrain the Disciplinary Appeal Panel (“the DAP”) that had been convened to hear his appeal against his dismissal from his employment. He sought an interlocutory injunction restraining the hearing on the basis of a reasonable apprehension of objective bias arising by the presence of the second named respondent on the panel. 34. That appeal (2024/173) was heard on 12th December 2024 and judgment was delivered on 25th July 2025. The Court allowed the appeal and granted the appellant an interlocutory injunction restraining the respondents in those proceedings from holding a hearing of the DAP, as then constituted, of the appellant’s appeal against his dismissal. 35. The appellant then sought to vary the judgment of Faherty J by the insertion of an explicit acknowledgement by the Court in its judgment that a finding by Edwards J, at para. 45 of his judgment in the within proceedings ([2023] IECA 52), was erroneous and that the Court departed from them. The Court declined to do so by a ruling dated 3rd November 2025. The appellant then brought an application for leave to appeal to the Supreme Court in respect of the ruling, and in effect, asked the Supreme Court to correct the “error”, which the Court of Appeal declined to by its ruling of 3rd November 2025. By a determination dated 25th March 2026, the Supreme Court refused leave to appeal, on the basis that it was satisfied that there was no demonstrable error, issue of general importance or exigency of justice, that suggested that the Court should entertain the appeal. 36. For a considerable period of time, though not the entirety of it, since the appellant first trespassed at the school in breach of the order of Owens J, the appellant has been in prison for contempt of court and has refused to purge his contempt, despite being offered numerous opportunities by many judges of the High Court to do so. Neither did he seek to appeal the order which he described as “void ab initio”. What changed his mind was a publication in the ‘Irish Times’, on 22nd January 2026, reporting on a statement by the Department of 20 Education. In his grounding affidavit, sworn on 17th February 2026, the appellant says that he “was first properly apprised of the statement made by the Department on 31 January 2026”. In his written and oral submissions, he described this as a significant recent development. He then moved in response to this statement to apply for an extension of time within which to appeal. 37. The report in the ‘Irish Times’ reads, in relevant part, as follows: “The Department of Education has contradicted a guide published by the Irish Council for Liberties (ICCL) that said schools were legally obliged to use the preferred pronoun of trans students. The ICCL guide, funded by the Irish Human Rights and Equality Commission (IHREC), cited ‘Department of Education guidelines’ when advising that students had a legal right for schools to use their preferred pronouns. The Department of Education has confirmed to the Irish Times that it has issued no such guidelines. ‘No guidelines have been issued’, the department said. It is understood that department officials have closely examined the issue in recent days and confirmed that no obligation, as presented in the ICCL guide, exists. Instead, it has advised schools that there is ‘nothing to preclude them’ from using a student’s preferred pronoun if they decide to do so in consultation with parents and the student. But the department has said there was no legal obligation to do so. It says that a ‘resource’ entitled ‘Being LGBT in School’, which was compiled with the Gay and Lesbian Equality Network, has been circulated, but this does not assert any legal obligation to use preferred pronouns. The department’s position puts it at odds with the guide circulated by the ICCL. 21 The ICCL guide says ‘according to the Department of Education guidelines, your school must make every effort to update your name and pronoun in relevant systems and documents. It must also use your correct name and pronoun in day-today interactions. ... ‘If you feel that your school is discriminating against you because you are trans or non-binary, you and your parent(
2. s)or guardian(
3. s)may choose to take a complaint to the WRC’.” [Emphasis added] 38. In his affidavit grounding this application, the appellant places great weight on this statement at paras. 28 to 31. He says the Department itself says that there is “no legal obligation” on schools to use a student’s “preferred” name or pronoun. He says: “The statement is a justification of the position which I have maintained from the very start of this matter when the principal made her instruction. This statement by the Department is an extremely significant development and is of fundamental relevance and importance to the within proceedings. I cannot understand why I remain in prison in light of this extremely significant development. I say that the Board’s position in these proceedings is shown to be wholly untenable in light of this statement by the Department. ... I say that the recent statement by the Department on 22 January 2026 contradicts the rationale set out by the principal in her instruction in her email to me dated 27 May 2022 [which referred to “the school’s obligations under the Equal Status Act 2000]. I say that this is a most serious matter.” 22 The Application to Extend Time to Appeal The appellant issued his notice of motion on 18th February 2026, grounded on his 39. affidavit affirmed on 17th February 2026. The respondent’s solicitor, Ms Fiona Sheil, swore a replying affidavit on 27th February 2026. The appellant replied to this by an affidavit affirmed on 10th March 2026. The appellant filed written submissions on 10th March 2026, and the respondent filed its on 24th March 2026. I shall refer to the detail of the affidavits and submissions in the course of the discussion of the issues in the appeal. Applications for an Extension of Time in which to Appeal 40. There was consensus between the parties in relation to the relevant law in this area. The court has a discretion and there are principles which guide the exercise of that discretion. The starting point is the decision of the Supreme Court in Eire Continental Trading Company Ltd v Clonmel Foods Ltd [1955] IR 170. Lavery J accepted that the following conditions were “proper matters for the consideration of the Court in determining whether time should be extended”: (
4. i)The applicant must show he had a bona fide intention to appeal formed within the permitted time. (
5. ii)He must show the existence of something like mistake and that mistake as to procedure, and in particular, the mistake of counsel or solicitor as to the meaning of the relevant rule was not sufficient. (iii) 41. He must establish that an arguable ground of appeal exists. Lavery J stated that the three matters “must be considered in relation to all the circumstances of the particular case”. 23 42. In most cases, the three factors will guide the court’s exercise of its discretion. In Pepper Finance Corporation (Ireland) DAC v Cannon [2020] IESC 2; [2022] IR 128, O’Malley J stated: “Extension of time within which to appeal is a matter for the discretion of the court, the exercise of which will in most cases be guided by the three factors identified in Éire Continental… but which is not the subject of rigid rules. As Geoghegan J. said in Brewer v. Commissioners of Public Works [2003] 3 I.R. 539, it is not to be assumed either that an extension will be granted if all three are satisfied or that it will be refused even if an applicant fails in respect of all three.” In Tyrrell v Wright [2018] IECA 133, Irvine J, speaking for the Court of Appeal, confirmed that the three factors in Eire Continental are proper matters for the consideration of the court “rather than binding pre-requisites”. She emphasised that the “overarching obligation of the court is to have regard to all of the circumstances of the case and to avoid visiting an injustice on either party” [para. 19]. 43. The current position has recently been summarised by the Supreme Court in Seniors Money Mortgages (Ireland) DAC v Gately [2020] IESC 3; [2020] 2 IR 441 at para. 46 by O’Malley J: “46. It is common case that the starting point for the determination of this application is the analysis by Lavery J. in Eire Continental [1995] IR 170. It is also agreed that the court retains a discretion, having regard to the totality of the circumstances of the particular case before it, to extend or refuse to extend time, and that a court is not precluded from exercising its discretion to grant relief in a case where only some or none of the aspects of the Eire Continental test are satisfied, if the interests of justice so require. 24 44. At para. 64 of her judgment, she noted that it was to be borne in mind, as was pointed out in Goode Concrete v CRH plc [2013] IESC 39, that it was difficult to envisage circumstances where it could be in the interests of justice to allow an appeal to be brought outside the time if the court is not satisfied that there are arguable grounds. 45. At para. 65, she emphasised the importance to be attributed to the length of the delay involved in the following terms: “By the same token it seems to me that, given the importance of bringing an appeal in good time – the desirability of finality in litigation, the avoidance of unfair prejudice to the party in whose favour the original ruling was made, and the orderly administration of justice – that the threshold of arguability may rise in accordance with the length of the delay. It would not seem just to allow a litigant to proceed with an appeal, after an inordinate delay, purely on the basis of an arguable or stateable technical ground. Since the objective is to do justice between the parties, long delays should, in my view, require to be counterbalanced by grounds that go to the justice of the decision sought to be appealed. Not every error causes injustice.” [Emphasis added] 46. A further factor may, depending upon the facts of the application, also be relevant to the court’s discretion to extend the time for an appeal. Since the Supreme Court delivered its judgment in Kirwan v Connors & Ors [2025] IESC 21 the approach of the courts to delay in prosecuting proceedings has been restated and recalibrated. The judgments emphasise that litigation ought to be conducted in a timely fashion and that proceedings may be dismissed where there has been a significant period of inaction. Just as it is unlikely to be in the interests of justice to extend the time for an appeal which has no prospect of success, as there is no arguable ground of appeal, so also, it seems to me, that it is difficult to see that the interests of justice are served by extending the time for an appeal where the proceedings 25 ought to be dismissed for delay. If an appellant has delayed to such an extent that the proceedings risk being dismissed for want of prosecution, in my view this is a factor which ought to be weighed by a court in determining whether to extend time in which to appeal. Discussion 47. The appellant applied to extend the time to appeal the decision of Owens J on 18th February 2026, two years and nearly five months after the time to appeal had expired. I intend to look at the first two considerations in Eire Continental and then to look at all of the circumstances of the case. I will then look at the proposed grounds of appeal. Finally, I will consider whether the justice of the situation warrants the court exercising its discretion to extend time in this instance. Intention to Appeal 48. The appellant informed the court that he never accepted the validity of the decision of the High Court. He said “I always knew it was wrong and I knew that I did have a constitutional right [to appeal]”. However, he did not aver or submit that he formed the intention to appeal within the time fixed for an appeal. On the contrary, his decision not to comply with the order and not to appeal was deliberate, as is apparent from the following. 49. In the first place, he defied the order to refrain from trespassing and attending at the school premises. The school immediately brought a fresh application for attachment and committal, and in his replying affidavit, he made it absolutely clear that he did not accept that the order was valid or that he was required to comply with it. Thereafter, at repeated court appearances, he persisted in arguing that the order was unlawful and void ab initio, but he did not take the basic and obvious step of appealing the decision, notwithstanding the fact that he “always… knew that [he] did have a constitutional right [of appeal]”. 26 50. Instead, in June 2024 (thirteen months after judgment was delivered by Owens J), he applied to Sanfey J in the High Court to set aside the judgment and order of Owens J. As I have already set out, in his judgment of 19th July 2024, Sanfey J recorded, at para. 45, that the appellant appeared to accept that if the ‘merits’ of the decision were in issue, an appeal would be appropriate but contended that the present case was different because it involved ‘a substantial issue of constitutional justice’. The judgment continues at para. 49 to make clear that the appropriate approach was to appeal to the Court of Appeal and that the appellant had “no reasonable or plausible explanation as to why he did not avail of [a right of appeal].” 51. The appellant did not seek an extension of time in which to appeal the decision of Owens J to this Court following the delivery of judgment by Sanfey J. 52. This is in marked contrast with his actions earlier in 2024. In his own proceedings, Burke v Ó Longáin, he appealed the decision of the High Court in 2024 to refuse him an injunction restraining the DAP from hearing the appeal against his dismissal. The appeal to the Court of Appeal was brought in July 2024 (i.e. eleven months after the perfection of the order of Owens J) and heard in December 2024. The appellant did not explain why he was prepared to appeal the decision of the High Court in the Burke proceedings, but not to appeal the decision of Owens J in these proceedings. 53. It is clear that this application was triggered by the publication in the ‘Irish Times’ of an article about a statement from the Department of Education issued in January 2026. Mr Burke avers in his affidavit grounding this application that he was “first properly apprised of the statement made by the Department on 31 January 2026” and that he “moved quickly since that time to apply for an extension of time within which to appeal”. In his written submissions, he described this as a significant recent development which, by implication, justified him in seeking to appeal the decision of Owens J, whereas previously, for unexplained reasons, he decided an appeal was not the appropriate step to take. In other 27 words, it is clear that the appellant did not form a bona fide intention to appeal within time. Therefore, he cannot satisfy the first of the Eire Continental criteria. In fact, he does not assert that he does or can: he simply ignores it. Explanations for the Delay in Seeking to Appeal 54. The Court asked the appellant why he did not appeal the decision of Owens J within time. The matter was not addressed in terms in his affidavit, but he raised the following arguments as excusing or explaining the delay. 55. The first was that he had lost confidence in the Court of Appeal following its decision of 7th March 2023 in these proceedings ([2023] IECA 52). This was the decision of this Court to dismiss his appeal against interim and interlocutory injunctions restraining him from trespassing at the school and ancillary relief. 56. This is not a valid reason not to appeal a judgment or order of the High Court. The fact that a litigant has lost one appeal does not mean the litigant may conclude that, henceforth, they may ignore the appellate structure of the courts and of the Constitution. Litigants are obliged to abide by orders of the court or to appeal them in the normal way. They cannot elect to decide that an order of the High Court is unlawful or not to be complied with and that they will not appeal the order in the normal way to the Court of Appeal. 57. It is noteworthy that at no stage has the appellant ever sought a leapfrog appeal which would have met his concerns (however ill-founded) in relation to the right of appeal to the Court of Appeal. 58. It is very difficult to square this explanation with the fact that in July 2024, in his proceedings Burke v Ó Longáin, he in fact appealed the decision of the High Court to the Court of Appeal. It begs the question, if he was prepared to appeal the decision in Burke, why could he not appeal the decision in these proceedings? 28 59. Apparently, by way of explanation, the appellant says that his confidence in the Court of Appeal was restored by the judgment of Faherty J in Burke v Ó Longáin [2025] IECA 148. While the appellant may have been satisfied by the outcome of that appeal, it clearly cannot explain why he did not appeal the judgment and order of Owens J between August 2023 and July 2025. Furthermore, it certainly did not prompt him to move this application to extend time in these proceedings. He waited a further six months before, in response to the ‘Irish Times’ article, on 22nd January 2026, he decided to bring this application. 60. In addition, it is not the explanation he gave to Sanfey J, when asked the same question. There, he made no reference to having lost confidence in the Court of Appeal. Rather, he argued that because- according to the appellant- the case involved “a substantial issue of constitutional justice”, it was appropriate to apply to set aside the order and judgment of Owens J rather than to appeal it. 61. I conclude that in fact the explanation given to this Court is disingenuous and, in any event, is not one which could ever justify a delay in appealing a decision of the High Court to this Court. 62. The second point he made was that he “never accepted or acquiesced in the Judgment and Order of Owens J”. He says that he challenged the judgment and order at the committal hearing on 8th September 2023 and at each subsequent committal hearing. On 14th June 2024, he applied to Sanfey J to set aside the judgment and order of Owens J. He has continued to challenge the validity of the judgment and order ever since. 63. He tried to recast the first factor in Eire Continental as a genuineness test. That is not what Eire Continental requires. The court asks whether a party formed the intention to appeal within the time to appeal – not whether the party accepted or agreed with the judgment or order. The order binds a party unless it is either stayed, vacated or overturned on appeal. All parties are bound to comply with court orders. They may not defy an order of the court and 29 then say that they are entitled to contend that they have not acquiesced in the order when, two and a half years later, they seek to extend time in which to appeal the order. It is not open to a party simply to treat the order as a nullity because they disagree with it. This is not an excuse or explanation that could ever be accepted in an application to extend time in which to appeal. 64. The third factor upon which he relies is “the failure of the Disciplinary Appeal Panel process as an effective appeal remedy”. This process has not yet concluded. Indeed, at the conclusion of the hearing of this application, the appellant asked this Court, in effect, to direct the DAP to postpone the hearing scheduled for 24th April 2026, two days after the hearing of this motion, pending the outcome of this application. The Court declined to do so. He subsequently sought and was refused an injunction restraining the hearing and the hearing commenced on 24th April 2026. It has not yet concluded. It is important to record that the current panel is an entirely new composition and is entirely separate from the previous panels to which the appellant previously successfully objected. It follows that his concerns about the previously constituted panels do not and cannot apply to the existing DAP. Furthermore, his objection to any nominee of the ASTI forming part of the DAP was rejected by the Court of Appeal in the judgment of [2025] IECA 148. While, subjectively, the appellant may “have totally lost confidence in the DAP process, as constituted under the Circular”, that does not avail him in this application. 65. Both the employer and employee are required to comply with the process provided by the Circular. The appellant may not unilaterally conclude that the process should no longer apply in his case. 66. Secondly, on the evidence before this Court, it is not open to this Court to conclude that it is impossible for the appellant to get a fair hearing under the process. On the contrary, the panel has been reconstituted. There is no evidence before this Court to suggest that it is 30 not properly constituted and that they will not conduct the hearing fairly and in accordance with the provisions of the Circular. 67. Finally, even if it were the case that it would no longer be possible to conduct an appeal from his dismissal to the DAP under the Circular, that does not lead to the conclusion that this now excuses the delay in advancing this appeal, or that he was entitled to await developments in the disciplinary process, and, at a subsequent date of his choosing, unilaterally decide that the process set out in the Circular was no longer an “effective appeal remedy”. Therefore, his subjective loss of confidence in the DAP process to afford him an effective appeal remedy is not a matter which can be considered by the Court in determining whether to extend time in which to appeal. 68. The fourth explanation or excuse for the delay advanced was the publication, on 22nd January 2026 in the ‘Irish Times’ of an article dealing with the statement of the Department of Education in relation to guidelines it was said to have issued in relation to advices by the Irish Council for Civil Liberties that schools were legally obliged to use the preferred pronoun of trans students. The appellant contends that this statement vindicated his position that the Principal’s direction of 9th May 2022, restated on 27th May 2022, was unlawful. 69. In my view, a statement issued by the Department of Education in January 2026 cannot explain or excuse the failure to appeal a judgment of the High Court delivered in May 2023. Neither can it be relied upon to extend the time in which to appeal, as, in a legal sense, it is of no relevance as it does not have the force of law. A statement from the Department of Education addressing the obligations of schools, or school principals, is merely that: a statement. It is not law nor is it legally binding. Quite simply, the view of the Department of Education in relation to guidelines published by ICCL can have no relevance to the assessment of the High Court of the lawfulness of the decision of the respondent to place the appellant on paid administrative leave on 22nd August 2022. The appellant is mistaken in his 31 view that the statement by the Department “is an extremely significant development and is of fundamental relevance and importance to the within proceedings”. It is not. It is irrelevant to the proceedings, and in particular to the judgment of the High Court. 70. It should also be observed that the appellant’s submission fails to have regard to the entire statement as reported in the ‘Irish Times’. The officials are reported to have said that there was no legal obligation on schools to use the preferred pronouns of students. But they are also reported to have “advised schools that there is ‘nothing to preclude them’ from using a student’s preferred pronoun if they decide to do so in consultation with parents and the student”. So, even if this Court afforded the statement the significance which the appellant attributes to it – a proposition I reject – there remains an issue within the terms of the statement, as reported, whether the Principal was entitled to issue the direction on 9th May 2022. 71. In summary, it is clear that the appellant did not form the intention to appeal within time and that he made a deliberate, conscious decision not to appeal for the following two and a half years. Neither does he have any reasonable explanation for his delay in appealing the judgment of the High Court. He expressly confirms this in his written submissions, where he says at para. 27 “[r]ecent developments in January/February 2026 have led to the within application for extension of time to appeal the Judgment and Order of Owens J”. He identifies these as being the statement by the Department of Education and what he terms the “failure” of the DAP process as an effective appeal remedy. The explanations he offered to this Court for not appealing were not made to other judges of the High Court, and in particular, were not advanced to Sanfey J. The explanation he offers to this Court is inconsistent with that offered to Sanfey J. The explanation he has advanced – loss of confidence in the Court of Appeal, the failure of the DAP process and the statement of the 32 Department of Education in January 2026, do not withstand scrutiny for the reasons I have explained. Mistake 72. The failure to appeal within time, far from being a mistake, was the result of a deliberate decision by the appellant, for his own reasons, not to appeal. This was made absolutely clear, if it were ever in question, by his application in 2024 to set aside the judgment of Owens J and the fact that he did not appeal to this Court after Sanfey J delivered his judgment on that application. On his own case, he never accepted the judgment of Owens J – he “knew it was wrong” and he “knew [he] did have a constitutional right [to appeal]”. The timeline shows that he had ample opportunity to bring the application, had he wished to do so. He clearly does not satisfy this factor. Additional Circumstances 73. The appellant avers in his grounding affidavit that if he is successful on ground (iii) of his appeal, that “[t]he Court fundamentally erred in finding that the alleged conduct of the Appellant, as set out in the principal’s report, if proved, was capable of amounting to ‘gross misconduct’ within the Circular” this would “effectively invalidate the entire disciplinary process against me (including my purported dismissal, which has not taken effect), by rendering it void ab initio. This would in turn remove the legal basis for an appeal to the DAP under the Circular”. 74. This is a remarkable argument for the appellant to advance at this stage. Litigation stemming from the events in Wilson’s Hospital School in the summer of 2022 has taken a heavy toll on a wide range of people. There have been an extraordinary number of applications in the High Court brought by both sides, and very considerable High Court 33 resources have been devoted to this dispute since the judgment of Owens J was delivered. As I have held, the decision of the appellant not to appeal the order and judgment of Owens J within time was deliberate and conscious. The appellant is inviting the court at this stage to weigh the fact that all that has transpired since then (and even before then) will be effectively invalidated by rendering it void ab initio as a factor in his favour. I disagree and can only describe the delay in appealing the judgment of the High Court in those circumstances, if that is indeed the appellant’s position, as amounting to a blatant abuse of the court processes. Assuming for the sake of the argument that he is correct, had he appealed within time, nearly three years of litigation would have been avoided. In those circumstances, in light of his intention and belief, the delay and ensuing (utterly avoidable) litigation becomes an abuse of the processes of the court. 75. The appellant believes the fact that he is in prison for contempt of court weighs in favour of granting this application and that it is in the interests of justice that he be allowed the opportunity to appeal against the said judgment and order. 76. It is important to be very clear as to the order which the appellant seeks to appeal. It is that he be restrained forthwith from entering or trespassing on premises at Wilson’s Hospital School in possession or control of the respondent without the consent of the respondent. The order of Owens J is not to imprison the appellant. He is not in prison on foot of the order sought to be appealed. 77. He is in prison because of his refusal to comply with it. He could have appealed this decision within the time allowed under the rules, in which case the appeal would have been concluded years ago. Equally, he could simply have stayed away from the school. It is important to emphasise yet again that this order merely requires him to stay away from one specified property. It does not compel the appellant to address anyone by any name or to use any pronoun towards any individual. It does not compel speech. He is not required to act in 34 any way which contradicts his beliefs or infringes any constitutionally guaranteed rights. He simply cannot have – and does not assert that he has – any constitutionally protected rights to enter upon the premises of the school. The fact that he is in prison for contempt of court for refusing to refrain from trespass at school is not, in my judgement, a factor to be weighed in his favour in assessing the overall justice between the parties. 78. The appellant contends that his case raises matters of exceptional public importance. Specifically, he says that the question whether the instruction to refer to a student by a new name and to use the ‘they’ pronoun is legitimate involves the express guarantee of Article 44 of the Constitution to freedom of conscience and the free profession and practice of religion. As I discuss below, the legitimacy of the instruction is not a matter to be decided in these proceedings. As the High Court judge pointed out, it is a matter of construing the contract between the employer and the employee and is a matter which fell to be determined, in the first instance, by the respondent dealing with the application to dismiss him and now by the newly constituted DAP which has seisin of the appeal. The issue in this case was whether the school principal and the board of management of the school correctly invoked and followed the procedures governing disciplinary hearings. It raises no new or exceptional issues for determination. This is therefore not a matter to be weighed in favour of extending the time for an appeal. 79. Finally, the appellant contends that the respondent will not suffer any real prejudice if an extension of time in which to appeal is granted. The respondent strongly disagrees with this submission. It points to the fact that it has engaged in protracted litigation with the appellant since August 2022. It believed that the issue of the validity of the decision to place him on paid administrative leave pending the determination of the ongoing disciplinary procedure was finally resolved by the judgment of Owens J in July 2023 over two and a half years ago. It has acted in reliance on the order. In particular, it relies on the fact there is a 35 permanent injunction restraining the appellant from trespassing on the school premises. It requires and is entitled to certainty and finality in that regard which will be denied it if this application is granted. 80. In my judgement it is not correct to say the respondent will not be prejudiced if the application is allowed. The respondent is required to act in the interests of the school and the school community. It is inevitable that this constant litigation impacts on the teachers, staff and pupils of the school and most particularly the student whose request commenced this most unfortunate dispute. The respondent has been obliged to bring repeated applications to the High Court in order to secure the fruits of the order in its favour by reason of the appellant’s defiance of that order. Had the appellant appealed in normal course, the appeal would have been heard long ago and all concerned would have been spared very considerable stress and expense. Furthermore, vast amount of court time would not have been taken up in dealing with the appellant’s refusal to comply with an order he insisted was void but steadfastly refused to appeal. In my judgement the respondent has a very real interest in the finality of this judgment and it will inevitably be prejudiced by the bringing of an appeal at such a remove. Arguable Grounds of Appeal Limits on the arguments the appellant may advance and the threshold of arguability 81. The appellant, by his conduct (as is recorded in both the order and the judgment of the High Court), was excluded from the hearing by the High Court. He was repeatedly invited to return, on condition that he undertook to abide by rulings of the court. He chose not to do so. In the result, he did not advance a defence, he did not advance his counterclaim, and he adduced no evidence in support of either his defence or counterclaim. 82. It is noticeable that in the draft notice of appeal, the appellant does not contend that he was wrongly excluded from the court or that the court erred in proceeding in his absence. 36 83. The appellant confirmed in oral submissions that he was not seeking to appeal the dismissal of his counterclaim. He wishes only to appeal the decision of the High Court on the respondent’s case, and to do so in circumstances where that case was unopposed. 84. The delay in this case in applying to extend time in which to appeal the decision of the High Court was in excess of two years and three months. This delay has to be assessed in light of the normal period in which to appeal (28 days). By any metric, that is a very significant delay. In Seniors Money, O’Malley J held that the threshold of arguability may rise in accordance with the length of the delay. At para. 71 of her judgment, she said: “. . . where there is significant delay before seeking an extension, the appellant will need to show a correspondingly strong case.” In my judgement, therefore, given the extraordinary delay in the bringing of this application, the appellant must establish correspondingly strong grounds of appeal that go to justice of the decision sought to be appealed. This is the lens through which the court must assess whether to extend time in which to appeal. 85. The appellant contends that the High Court was required to assess whether any of his rights guaranteed by the Constitution were infringed by the respondent when considering whether the respondent had made out its case for the relief set out in the plenary summons quoted above. The appellant argues that it was “imperative” for the High Court to analyse the legitimacy of the Principal’s instruction. In my judgement, he is incorrect and fundamentally misunderstands the nature of this litigation. It is adversarial. The court is not engaged in an inquisitorial process. The court is not required to raise points of defence which a defendant has not advanced of its own motion (save in instances which do not arise in these circumstances). The court is required to assess whether a plaintiff has made out its case, both as a matter of law and on the evidence. Where the case is, in effect, undefended and there is no challenge to the evidence advanced, if the evidence appears credible to the court, the court 37 is not required to reject the evidence and case advanced by a plaintiff in the absence of the defendant, based upon evidence and arguments not adduced or advanced. It is certainly not sufficient for a defendant simply to point to their pleadings. In many instances pleaded cases and defences are not maintained or pursued at trial. Unless a pleaded point is maintained at trial there is no requirement that a court considers a case not actually made to it. Specifically, where a case is undefended the court is required to test the plaintiff’s claim but not to raise defences not advanced by the defendant. Thus, insofar as complaint is made that the High Court, of its own motion, failed to consider matters which the defendant, had he been present, would have raised by way of defence or counterclaim, that does not afford an arguable ground of appeal. As was pointed out by Sanfey J in his judgment of 19th July 2024, while there are times when breaches of constitutional rights are evident and easily recognised, it is more often the case that when constitutional rights are the subject of litigation: “[W]hether or not a breach of such rights has taken place requires careful consideration of the circumstances and the rights of all parties involved. Those rights must be carefully assessed so the competing rights may be evaluated and reconciled in a manner consistent with the requirements of constitutional justice.” This did not – and could not occur – at the trial before Owens J, because the defendant did not defend the case against him. It follows that there was no basis upon which the High Court could properly have held that the appellant’s constitutional rights had been infringed, as he pleaded in his defence to the respondent’s claim, as, by his absence, he precluded the required hearing from taking place. 86. Secondly, it is important to consider what was the respondent’s case. It sought a declaration that the appellant was on paid administrative leave pending the outcome of a disciplinary process and that the decision to put him on paid administrative leave was lawful. There is a real distinction between a person’s dismissal and a person’s suspension on pay 38 while a disciplinary process takes place. The appellant submitted that, in essence, the decision to suspend him “was dismissal” because “I would not agree”. This is fundamentally incorrect. A decision to suspend an employee may be perfectly valid even though, at the end of the disciplinary process, their position is vindicated and/or they are not dismissed. In this case, the intention of the respondent was to suspend the appellant from 22nd August 2022 until 14th September 2022. In the event, the duration of his suspension has been far longer, but that does not alter the nature of the decision made by the respondent on 22nd August 2022. The appellant fundamentally erred when he repeatedly sought to equate the two types of decisions in his submissions. Suspension does not terminate the contract of employment. It is part of a process. It is, by its nature, a temporary decision, not a final one. On the other hand, a decision to dismiss an employee terminates the contract of employment, and, subject to a right of appeal or other challenge, is final. 87. The narrow scope of the respondent’s claim limited the matters which it was required to prove and the High Court to determine. The validity of the Principal’s direction of 9th May 2022 did not arise: that is and was a matter for the body charged with determining whether or not the appellant should be dismissed. That decision maker was not the High Court. The Court was required to assess whether, as a matter of the construction of the Circular (which set out the terms of the appellant’s contract in relation to disciplinary matters), the undisputed conduct of the appellant was capable of amounting to gross misconduct within the meaning of the Circular. This the Court did. Not only was it not required to go further, it would have erred if it had, as it would have thereby usurped the function of the decision maker established by statute. 88. Third, normally an appellant is not permitted to argue an entirely new case on appeal or to advance arguments unrelated to those made in the court below. There is some latitude in respect of new or recast arguments which are closely related to those advanced in the High 39 Court, but that presupposes that some argument was made. Where, as here, the appellant seeks to advance a new case on appeal, the onus rests on him to show why he should be permitted to do so, by reference to the established jurisprudence. Unfortunately, the appellant made no effort to address this aspect of his application and so the Court is left to consider which, if any, of his arguments could properly be advanced on appeal, if he were granted the extension of time he seeks. The Proposed Grounds of Appeal 89. In his draft notice of appeal, the appellant identifies seven proposed grounds of appeal (some of which comprise multiple sub-grounds). They are: “1. The Court found that the Respondent (the ‘Board’) suspended the Appellant on foot of the Appellant’s failure to undertake to comply with the principal’s instruction to staff and students to refer to a student by a new name and the ‘they’ pronoun. The Court fundamentally erred in finding that this was a lawful and valid reason to suspend the Appellant (§ 85-103). 2. The Court fundamentally erred in failing to conduct any analysis of the legitimacy of the principal’s instruction. 3. The Court fundamentally erred in finding the alleged conduct of the Appellant, as set out in the principal’s report, if proved, was capable of amounting to ‘gross misconduct’ within the Circular (§ 72, 81). 4. The Court fundamentally erred in finding that there was no prejudgment in relation to the decision of the Board to suspend the Appellant (§100). 5. The Court fundamentally erred in finding that the Board complied with its contractual obligations to the Appellant in suspending him (§14(i), 35) and fundamentally erred in finding that ‘[t]he Board is entitled to a declaration that the 40 decision on 22 August 2022 to put [the appellant] on paid administrative leave was lawful’ (§35). 6. The Court fundamentally erred in finding that it was unnecessary for the court to determine claims by the Appellant that the Board had interfered with his constitutional rights (§18). 7. The Court fundamentally erred in finding that the Appellant’s attendance on school premises subsequent to his suspension was trespass (§14(ii)) and fundamentally erred in finding that the Board is entitled to damages for trespass and a permanent injunction prohibiting the Appellant from entering on school premises (§32, 33).” Discussion of Grounds of Appeal Grounds 1 and 3 90. Grounds 1 and 3 may be taken together. The respondent sought a declaration that its decision to place the appellant on paid administrative leave was lawful. This required the High Court to consider whether the Principal, in making her complaint, and the respondent, in dealing with the complaint, complied with the terms of the Circular and the other provisions of the appellant’s contract of employment. The High Court assessed whether the conduct of the appellant and the content of the Principal’s report could come within the term “gross misconduct” as defined in the Circular. The High Court concluded that the alleged conduct of the appellant, if proved, was capable of amounting to “gross misconduct” within the meaning of that term in the Circular. Owens J did not decide that the conduct did amount to misconduct, merely that, if proved to the DAP, it was capable of amounting to gross misconduct. This finding meant that it was lawful for the respondent to proceed to investigate 41 the complaint against the appellant and to progress the disciplinary process established by the Circular. 91. Ground 1 of the draft notice of appeal asserts that the High Court held that the respondent suspended the appellant because he would not undertake to comply with the Principal’s direction. That is not a correct summation of the grounds upon which the High Court upheld the lawfulness of the decision of the respondent to suspend the appellant pending the holding of a disciplinary hearing to investigate the complaint of the Principal set out in her report. 92. Owens J made certain findings of fact. He held that the appellant was aware that there was a serious concern about his future conduct if he was permitted to teach in the school. The judge held that the appellant “knew that the issue of whether he was prepared to obey the direction on how he should behave in the school in relation to pupils who had been facilitated in changing in gender identity was likely to be central to any decision to suspend” but that instead of addressing the issue why it would be inappropriate to suspend him he “repeatedly attempted to side-track the process” . The High Court found that the appellant “did not address whether he would comply with the school principal’s direction. The discussion never got to the stage where the issue was discussed.” Thereafter the hearing was terminated. 93. The High Court upheld the validity of the decision to suspend in paras. 101-103 as follows:“101. The [respondent] arrived at a consensus decision that [the appellant] should be suspended because of concern that if he were permitted to teach, he would engage in a repeat of his behaviour and that this would be damaging to the school… … 42 103. Considering what the [respondent] knew about [the appellant’s] actions in the school towards the end of the previous academic year and his behaviour at the Board meeting, apprehension that he would engage in harmful and disruptive conduct if permitted to teach in the school was rational and reasonable. The [respondent] was entitled to consider the [the appellant] did not address the issue of how he would behave in the school.” 94. It is clear that the High Court found that the basis for the respondent’s decision to suspend the appellant was a concern about his future conduct or behaviour at the school in light of his conduct since 9th May 2022 and that a repetition of the behaviour would cause damage to the school. It was not because he would not undertake to comply with the Principal’s instruction, though had such an undertaking been forthcoming it would probably have addressed many, if not all, of the respondent’s immediate concerns. But that is a different matter. The decision of the respondent to suspend the appellant was ultimately upheld because its apprehension that the appellant would engage in harmful and disruptive conduct if he were permitted to teach at the school was rational and reasonable. 95. The appellant chose to refuse to comply with the Principal’s direction, but whether he was entitled to do so without exposing himself to disciplinary action is not for resolution in these proceedings. But consequences flowed from his decision. In particular, it does not follow that the respondent was not entitled to suspend him pending the conclusion of a disciplinary process initiated by the Principal in accordance with the terms of the Circular. The merits of the positions of the Principal and the appellant remained to be determined, initially by the respondent at its meeting fixed for 14th September 2022 and currently by the DAP. It is therefore no answer to the validity of the judgment of the High Court to say that the appellant was entitled to refuse to comply with the Principal’s direction. 43 96. The premise of Ground 1 is therefore mistaken. It is contrary to findings of fact made by the trial judge which are not open to challenge by the appellant by reason of his failure to participate in the trial. It follows that this ground of appeal can have no prospect of success and that it does not afford a basis for extending the time for appeal in this case. 97. Ground 3 of the draft notice of appeal asserts that the trial judge erred in finding that the appellant’s conduct, if proved, was capable of amounting to “gross misconduct” within the Circular. To succeed on this appeal the appellant must show that his conduct (the details of which are not disputed) and his intimated future conduct could not come within the definition of gross misconduct. One of the examples of gross misconduct in the Circular is “[r]efusal to comply with legitimate instructions resulting in serious consequences”. The appellant forcefully contests the legitimacy of the principal’s instruction on 9th May 2022. But the question for the Court in these proceedings is not whether the direction was a legitimate instruction, but rather, whether it is not even arguable that it was a legitimate instruction. That is because the question of whether it was in fact a legitimate instruction is for the DAP to decide. This Court is concerned with the validity of the invocation of the disciplinary process and thus only with whether the conduct, if proved, could amount to misconduct within the Circular. 98. In my judgement the appellant’s contention that it is not arguable that the instruction could be legitimate is, at best, just about arguable. However, that is not sufficient in the context of this application. As was pointed out in Seniors Money, the objective is to do justice between the parties and the factors identified in Eire Continental are appropriate factors to be considered by the court. Where there has been considerable delay, as in this case, it requires to be counterbalanced by grounds that go to the justice of the decision sought to be appealed before the court will exercise its discretion to extend time in which to appeal. I will discuss this later in this judgment. 44 Ground 2 99. In Ground 2 the appellant asserts that the High Court fundamentally erred in failing to conduct any analysis of the legitimacy of the Principal’s instruction. For the reasons just discussed, the “legitimacy” of the direction was not a matter to be resolved in these proceedings. It follows that this ground of appeal can have no prospect of success and therefore does not afford a basis for this Court to exercise its discretion to extend the time for the appellant to appeal. Ground 4 100. Ground 4 of the appeal alleges that the court fundamentally erred in finding that there was no prejudgment in relation to the decision of the respondent to suspend the appellant. The judge made this finding of fact after having heard the witnesses. It is not open to the appellant to challenge a finding of fact in circumstances where he did not cross-examine the witnesses, so they did not have the opportunity to address his allegations of prejudgment, and he did not lead any evidence of his own. He cannot satisfy the test for challenging findings of fact on appeal set out in Hay v O’Grady [1992] 1 IR 210 and the references in his draft notice of appeal to WhatsApp exchanges do not avail him. They were not proved in evidence and they were not put to the witnesses. 101. At subparagraph 4.(E), he misunderstands the role of the report of the Principal in the procedure established under the Circular. It is the means by which she brings her complaint before the respondent board of management. It sets out her view of matters. His right to natural justice or fair procedures is not engaged at this stage of the process. If the board of management is satisfied that a complaint is one which it should investigate, then it must do so and convene a disciplinary meeting where the teacher may respond to the allegations made against him. The purpose of the disciplinary hearing is to enable him to set forth his case in relation to the matters raised by the Principal in her report. Therefore he has no grounds of 45 appeal to the effect that the High Court erred in stating that the Principal was not passing a judgement on his behaviour. She was not: she was setting out a complaint. It is the respondent- not the Principal- who is authorised to make the decision to suspend or to dismiss the appellant. 102. It is also not open to the appellant to argue that the High Court erred in finding that the attendance of the Principal at the meeting of 15th August 2022 did not affect the validity of the decision to suspend the appellant, which was taken on 22nd August 2022, as he made no submissions to the court regarding the matter and he did not cross-examine the witnesses for the respondent in relation to his contention to that effect. In effect this is a new case which he chose not to advance in the High Court. As that decision- and the resultant outcome- was entirely of his own making, there is no basis for this Court under established jurisprudence to permit him to advance a wholly new case on appeal. 103. I am not satisfied that this ground of appeal is arguable or that the grounds asserted are open to the appellant to advance. Furthermore, it does not go to the justice of the decision sought to be appealed. Ground 5 104. Ground 5 simply states that the High Court erred in finding that the respondent complied with its contractual obligations to the appellant in suspending him but points to no new arguments to support this plea in addition to those I have already discussed (or will discuss in the assessment of Ground 6). In my judgement the argument the appellant seeks to advance on this point is untenable and not one which it is open to him to make on appeal for the first time, a fortiori where he did not participate in the trial, did not cross-examine witnesses, did not adduce any evidence or advance submissions to the court based on the facts proved in evidence. 46 Ground 6 105. Ground 6 pleads that the Court fundamentally erred in finding that it was unnecessary for the Court to determine claims by the appellant that the respondent had interfered with his constitutional rights. The appellant confirmed to this Court that he was not appealing the dismissal of his counterclaim. The appellant’s claims that the respondent had interfered with his constitutional rights were set out in that counterclaim. Thus, he cannot advance them in his intended appeal and they have been dismissed and that order is not under appeal. 106. Insofar as his defence to the respondent’s case was that the respondent had interfered with his constitutional rights, the High Court clearly and methodically analysed the process. The Court assessed whether he was afforded fair procedures and concluded that he had. It held that the Principal and the respondent complied with their contractual obligations to the appellant. The High Court held that the respondent was restricted from considering the substance of the Principal’s complaint because of legal advice that members could not discuss the substance of the allegations and that this was a matter to be considered at the disciplinary hearing convened for 14th September 2022. Thus, the respondent could not consider the substance of the constitutional rights which the appellant claimed were infringed. A failure to do so therefore could not amount to an infringement of his constitutionally guaranteed rights. 107. The question whether the respondent breached any of his constitutionally guaranteed rights in reaching its decision to suspend the appellant pending the disciplinary hearing was hotly contested by the respondent. If the appellant wished to defend the respondent’s case against him on this basis, he was required to engage in a hearing of the kind described by Sanfey J at para. 46 which I have previously quoted. By his own choice, he did not do so. He cannot advance an appeal on the basis that the High Court erred in determining that it was unnecessary to decide issues which he did not raise at the trial in the circumstances. It in 47 effect amounts to an attempt to advance an entirely new, positive, case on appeal because he advanced no case at all at first instance. 108. In the circumstances, I am satisfied that this is not a ground of appeal open to the appellant to advance and for the reasons I have explained has no prospects of success. Ground 7 109. Ground 7 of the draft notice of appeal asserts that the High Court fundamentally erred in finding that the appellant’s attendance on the school premises after he was placed on paid administrative leave was trespass. This is based on the contention that the trial judge erred in finding that “[e]vidence presented to this Court demonstrates that mutual trust and confidence between the Board and [the appellant] have broken down as a result of his actions”. This was a finding of fact which was open to the court to reach based on the evidence before it and no basis for an appellate court to interfere with this finding has been even suggested. Applying the principles in Hay v O’Grady, given that the appellant did not challenge the witnesses and gave no evidence himself, and where there was ample evidence to support the trial judge’s finding, this ground of appeal is bound to fail. 110. The appellant does not dispute that the permission afforded to him as a teacher to be on school premises in order to carry out his duties as teacher was necessarily withdrawn by the decision of the respondent to place him on paid administrative leave from 22nd August 2022. Absent a right to be on the premises as an adjunct to his role as a teacher, the appellant had no right to be on the premises of the school. Whether or not the suspension might subsequently be found to be invalid, this could never alter the fact that for the duration of the suspension the respondent did not permit or agree to the presence of the appellant on private grounds under their occupation and control. In my judgement, this ground of appeal is unstateable and affords no basis to extend time in which to appeal the judgment and order of Owens J. 48 111. In summary, taking the draft notice of appeal at its height, the most that can be said is the appellant has one ground of appeal which is just about arguable. He has not advanced very strong grounds of appeal. The other grounds of appeal are either unstateable, not open to him to make for the first time on appeal, involve an impermissible challenge to findings of fact by the trial judge made on the evidence, would involve this Court upholding matters which were never put to the respondent’s witnesses or simply never arose for decision in these proceedings. Decision The justice of the decision sought to be appealed 112. In Seniors Money, O’Malley J stated that the objective of a court hearing an application for an extension of time in which to appeal is to do justice between the parties. She also said that where the delay is lengthy this needs to be counterbalanced by grounds of appeal that go to the justice of the decision sought to be appealed. 113. In this case the delay is very lengthy when compared with the time allowed for appealing to this Court. The appellant did not form an intention to appeal within the time for bringing an appeal. His failure to do so was not a mistake- it was a deliberate decision not to appeal. 114. The appellant has raised one (barely) arguable ground of appeal. He has not raised any very strong ground of appeal. This means that he has satisfied only one of the three factors in Eire Continental, which are usually regarded as cumulative requirements. He does not address the three criteria, but instead stresses that, in his submission, he has very strong grounds of appeal and proceeds on the basis that this compensates for the failure to come anywhere near meeting the Eire Continental criteria. He does not and it does not. 49 115. The appellant advanced no reasonable explanation or excuse for the extraordinary delay in appealing a judgment which he insists that from the very beginning he “knew” was wrong and in circumstances where he at all times knew that he had a right of appeal. Those he did put forward were entirely without merit. When he chose, he did exercise that right of appeal in respect of other orders of the High Court. Instead, in this instance, he chose to disobey the order of the High Court and, a year later, to ask another High Court judge to set aside the decision of Owens J. These were not the actions of a party who genuinely seeks relief from the Court by way of appeal. They are the actions of a person who is only prepared to engage with the courts on his terms. 116. He did not participate in the plenary trial after the first day. He presented no evidence, he did not cross-examine the respondent’s witnesses, he did not afford them the opportunity to answer his allegations against the respondent, and he made no submissions to the Court. The gravamen of his complaint is that the High Court ought to have done what he failed to do on his own behalf: raise arguments that the respondent had breached his constitutional rights and to challenge the witnesses for the respondent in respect of alleged breaches of his rights. The judge was not his advocate; if he wished to advance a positive defence to the respondent’s claim the onus was on him to do so. He cannot outsource it to the Court. 117. His counterclaim was dismissed and he does not seek to appeal that dismissal. Rather he belatedly seeks to appeal the orders granted to the respondent on what was effectively an undefended case. He in fact wishes to advance a new case on appeal, having made no case at all in the High Court. This is simply impermissible and not an appropriate way to conduct litigation and he has advanced no acceptable excuse for this conduct. 118. His avowed intention in bringing this appeal is to seek to undo all the steps which have been taken in this dispute since August 2022 on the basis that this Court may find that the Principal’s direction of 9th May 2022 was unlawful and therefore that he did not fail to 50 comply with a legitimate instruction within the meaning of the Circular. Assuming that is indeed what he hopes to achieve by a successful appeal in this case, his prosecution of his defence of the respondent’s claim in this manner has been an extraordinary abuse of the processes of the court. 119. The core of his submission to the Court reduces itself to his assertion that the issues at stake are so fundamental such that this Court should disregard all of the above and permit him to appeal at this very late stage. The draft grounds of appeal do not raise fundamental issues of constitutional rights. The question of religious freedom or freedom of conscience is not engaged by either an order to refrain from trespassing on private property or a declaration that a decision to suspend a teacher pending a disciplinary hearing which is ongoing is lawful. The question of the lawfulness of the direction of the Principal of 9th May 2022 is not an issue to be resolved in these proceedings. Under the Education Act 1998, the decision maker is the DAP, not the High Court (or this Court on appeal) in these proceedings. He has raised no basis for overturning the permanent injunction restraining him from trespassing at the school. 120. He has raised no ground of appeal that goes to the justice of the decision sought to be appealed and none is sufficient to counterbalance the lengthy delay in this case. 121. In my judgement the justice of the case weighs heavily against this application. The Court is required to do justice between the parties and in my view, the only just outcome in all the circumstances is to refuse the application. 122. My provisional view is that the respondent has been wholly successful on this application and is presumptively entitled to the costs of the application, to be adjudicated in default of agreement. If the appellant wishes to contend for a different order he may furnish a submission in writing of no more that 2000 words setting out the basis for an alternative order as to costs. He should file it within 14 days of the delivery of this judgment and serve it on 51 the solicitors for the respondent at the same time. The respondent will have 14 days to file a reply on no more than 2000 words. The Court will then decide whether to hold a further hearing or to rule on the matter based on the submissions. 123. Faherty and Pilkington JJ have authorised me to indicate their agreement with this judgment. 52