Ashe v Residential Tenancies Board
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 20 November 2023 |
| Neutral Citation | [2023] IEHC 627 |
| Court | High Court |
| Docket Number | 2022 227 MCA |
In the Matter of the Residential Tenancies Act 2004
[2023] IEHC 627
2022 227 MCA
THE HIGH COURT
Francis McGagh for the appellant instructed by O'Sullivan & Associates
Paul Finnegan for the respondent instructed by Byrne Wallace LLP
Seán O'Mahony for the notice parties instructed by Smithwick Solicitors
JUDGMENT of Mr. Justice Garrett Simons delivered on 20 November 2023
This matter comes before the High Court by way of an appeal on a point of law from a determination of the Tenancy Tribunal of the Residential Tenancies Board. The determination of the Tenancy Tribunal had been to the effect that a notice of termination, which had been served on the grounds that the landlords require the dwelling for occupation by a member of their family, was valid. The relevant determination order is dated 17 August 2022.
By virtue of Order 84C of the Rules of the Superior Courts, the appropriate respondent to the appeal is the Residential Tenancies Board (formerly known as the Private Residential Tenancies Board). For ease of exposition, I will refer to the appellant as “ the Tenant”; the decision-maker as “ the Tenancy Tribunal”; and the Residential Tenancies Board as “ the RTB” or “ the Board”. The landlords are notice parties to these proceedings. They will be referred to collectively as “ the Landlords”. Mr. George Dyer gave evidence before the Tenancy Tribunal on behalf of both landlords.
The appeal comes before the High Court pursuant to Section 123 of the Residential Tenancies Act 2004 (“ RTA 2004”). The appeal is by way of an appeal on a point of law.
The High Court's jurisdiction on an appeal on a point of law has been explained as follows by the Supreme Court in Fitzgibbon v. Law Society [2014] IESC 48, [2015] 1 I.R. 516 (at paragraphs 127 and 128 of the reported judgment):
“The applicable principles were helpfully summarised by McKechnie J. in Deely v. Information Commissioner [2001] 3 I.R. 439 at p. 452, which concerned an appeal under s. 42 of the Freedom of Information Act 1997, as follows:-
‘There is no doubt but that when a court is considering only a point of law, whether by way of a restricted appeal or via a case stated, the distinction in my view being irrelevant, it is, in accordance with established principles, confined as to its remit, in the manner following:-
(a) it cannot set aside findings of primary fact unless there is no evidence to support such findings;
(b) it ought not to set aside inferences drawn from such facts unless such inferences were ones which no reasonable decision making body could draw;
(c) it can however, reverse such inferences, if the same were based on the interpretation of documents and should do so if incorrect; and finally;
(d) if the conclusion reached by such bodies shows that they have taken an erroneous view of the law, then that also is a ground for setting aside the resulting decision …’
This passage was later cited in the Supreme Court judgments of both Fennelly and Kearns JJ. in Sheedy v. Information Commissioner [2005] IESC 35, [2005] 2 I.R. 272.
In one sense it may be said that two types of points of law can legitimately be raised in an appeal which is limited to points of law alone. First, there may be an error of law in the determination of the first instance body. Second, it may be the case that the way in which the first instance body has reached its conclusions on the facts involves an error which itself amounts to an error in law. There may have been no evidence to support a finding or inferences may have been drawn on the facts which no reasonable decisionmaker could have drawn. It follows that a higher degree of deference, so far as the facts are concerned, is paid by the appellate body to the decision of the first instance body in an appeal on a point of law only, as opposed to an appeal against error. In the latter case the court is entitled to form its own view on the proper inferences to be drawn (although not on primary facts).”
The principles in Fitzgibbon have been applied in the specific context of an appeal under Section 123 of the Residential Tenancies Act 2004 in a number of High Court judgments. In Marwaha v. Residential Tenancies Board [2016] IEHC 308, the High Court (Barrett J.) summarised the principles as follows (at paragraph 13):
“What principles can be drawn from the foregoing as to the court's role in the within appeal? Four key principles can perhaps be drawn from the above-considered case-law:
(1) the court is being asked to consider whether the Tenancy Tribunal erred as a matter of law (a) in its determination, and/or (b) its process of determination;
(2) the court may not interfere with first instance findings of fact unless it finds that there is no evidence to support them;
(3) as to mixed questions of fact and law, the court (a) may reverse the Tenancy Tribunal on its interpretation of documents; (b) can set aside the Tenancy Tribunal determination on grounds of misdirection in law or mistake in reasoning, if the conclusions reached by the Tenancy Tribunal on the primary facts before it could not reasonably be drawn; (c) must set aside the Tenancy Tribunal determination, if its conclusions show that it was wrong in some view of the law adopted by it.
(4) even if there is no mistake in law or misinterpretation of documents on the part of the Tenancy Tribunal, the court can nonetheless set aside the Tribunal's determination where inferences drawn by the Tribunal from primary facts could not reasonably have been drawn.”
Most recently, the High Court (Ferriter J.) in Web Summit Services Ltd v. Residential Tenancies Board [2023] IEHC 634 emphasised “ the very high bar” which an appellant must surmount in order to show that no reasonable decision-maker could have arrived at the impugned findings of the Tenancy Tribunal.
Finally, it should be emphasised that the point of law must arise from the determination under appeal. The High Court is not hearing the matter de novo but rather is considering the legality of the decision of the Tenancy Tribunal. The High Court should normally decline to decide a point of law which had neither been argued before, nor decided by, the Tenancy Tribunal. See, by analogy, Governors & Guardians of the Hospital for the Relief of Poor Lying-in Women, Dublin v. Information Commissioner [2011] IESC 26, [2013] 1 I.R. 1 (at paragraph 90 of the reported judgment). See also the judgment of the High Court (Noonan J.) in Hyland v. Residential Tenancies Board [2017] IEHC 557 (at paragraphs 25 to 27).
This limitation on the High Court's appellate jurisdiction assumes an especial importance in the present case in circumstances where a number of the objections sought to be advanced by the Tenant are not ones which were pursued at first instance before the Tenancy Tribunal. In particular, the suggestion that the Landlords' intention in seeking to terminate the tenancy was informed by reasons other than the stated reason, i.e. to allow the dwelling to be occupied by their daughter, was not raised before the Tenancy Tribunal. It is impermissible to attempt to raise a factual issue, for the first time, in the context of an appeal on a point of law.
The principal objection made to the Tenancy Tribunal's determination centres on the finding that the version of the statutory declaration served upon the Tenant had been the original and not a photocopy. To assist the reader in understanding this objection, it is necessary to pause and explain the procedure by which a landlord may terminate a tenancy. One circumstance in which a residential tenancy may be terminated is where the landlord requires the dwelling for occupation by a member of his or her family. In order to terminate the tenancy on this ground, the landlord must serve a notice of termination giving the requisite period of notice. The notice of termination must cite the reason for the termination and must either contain or be accompanied by a statutory declaration specifying (i) the intended occupant's identity and his or her relationship to the landlord, and (ii) the expected duration of that occupation. The (former) tenant must be offered a fresh tenancy in the event that the landlord's relative vacates the dwelling within twelve months. See Section 34 of the Residential Tenancies Act 2004.
The Tenant interprets this procedure as mandating the service of the original statutory declaration. The Tenant sought to argue before the Tenancy Tribunal that he had been served with a copy and not the original. The Tenant placed emphasis on the fact that the affidavit of service referred to a “ True copy Statutory Declaration”.
The Tenancy Tribunal heard oral evidence from both the Landlord and Tenant on this issue. The Tenancy Tribunal set out its findings on this issue in its determination as follows:
“It was the Landlord's evidence at the appeal hearing that he served the original Notice of Termination and Statutory Declaration and that he understood the reference to a ‘true copy’ of the Statutory Declaration in the affidavit of Service dated 9 February 2022 to mean the original statutory declaration was being served.
Pursuant to Section 34(4) a notice of termination must contain or be accompanied by a statutory declaration. It is notable prior to the adjudication no reference was made of copy documents having been served on the Tenant on the 4 February, 2021. There is no reference to copy documents being served in the party's evidence and submissions to the adjudicator. When invited to particularise why he formed the opinion that the statutory declaration served on him was a copy, the...
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