Byrne v Dublin City Council

JurisdictionIreland
CourtHigh Court
JudgeMr Justice Roderick Murphy
Date18 March 2009

[2009] IEHC 122

THE HIGH COURT

[7804 P/2007]
Byrne v Dublin City Council
IN THE MATTER OF SECTION 3 OF THE EUROPEAN CONVENTION ON
HUMAN RIGHTS ACT 2003

BETWEEN

PATRICIA BYRNE
APPLICANT

AND

DUBLIN CITY COUNCIL
RESPONDENT

AND

THE ATTORNEY GENERAL
NOTICE PARTY

HOUSING ACT 1966 S62(1)

HOUSING ACT 1970 S13

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S62

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

HOUSING ACT 1966 S62

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S1

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

GIFFORD v DUBLIN CITY COUNCIL UNREP SMYTH 20.11.2007 2007/26/5275 2007 IEHC 387

RSC O.84

O'DONNELL v DUN LAOGHAIRE CORP 1991 ILRM 301

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(5)

H v H UNREP KEANE 20.12.1979 1981/4/591

DUBLIN CITY COUNCIL v FENNELL 2005 IR 604

IRISH TRUST BANK v CENTRAL BANK OF IRELAND 1976-77 ILRM 50

CAMPUS OIL v MIN FOR INDUSTRY (NO.2) 1983 IR 88

CHANNEL TUNNELL GROUP LTD v BALFOUR BEATTY CONTRUCTION LTD 1993 AC 334 1993 1 AER 664

SMITH v INNER LONDON AUTHORITY 1978 1 AER 411

SISKINA v DISTOS COMPANIA NAVIERA SA 1979 AC 210

FERRIS v WARD 1998 2 IR 194 1995 17 4475

CONTROLLER OF PATENTS v IRELAND 4 IR 229

INTELLECTUAL PROPERTY MISCELLANEOUS PROVISIONS ACT 1998 S4

INTELLECTUAL PROPERTY MISCELLANEOUS PROVISIONS ACT 1998 S5

JUDICATURE IRELAND ACT 1877 S27(7) (UK)

COURTS OF JUSTICE ACT 1924 S17

COURTS SUPPLEMENTAL PROVISIONS ACT 1961 S8(2)(a)

RSC O.50 r6(1) 1986

MAHON v BUTLER 1997 3 IR 369

DUBLIN CITY COUNCIL v MCGRATH 2004 1 IR 216

DORAN v IRELAND UNREP 31.7.2003 ECHR APPLICATION NO. 50389/99

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4

PLATFORM ARZTE FUR DAS LEBEN v AUSTRIA 1991 13 EHRR 204

KLASS & ORS v FEDERAL REPUBLIC OF GERMANY 1980 2 EHRR 214

LEANDER v SWEDEN 1987 9 EHRR 433

KRASUSKI v POLAND APP NO 61444/00 14/6/2005

KUDLA v POLAND 2002 35 EHRR 198

JACOBS & WHITE EUROPEAN CONVENTION HUMAN RIGHTS 4ED 2006 P 460

JAMES & ORS v UK 1986 8 EHRR 123

DUBLIN CITY COUNCIL v GALLAGHER UNREP O'NEILL 11.11.2008 2008 IEHC 354

CONKA v BELGIUM 2002 34 EHRR 1298

INTELLECTUAL PROPERTY MISCELLANEOUS PROVISIONS ACT 1998 S8

RSC O.50 r6

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2(1)

BENNION ON STATUTORY INTERPRETATION 4ED 2002 P54

RICKLESS v UNITED ARTISTS CORP 1988 QB 40 1 AER 679

CRAIES ON STATUTE LAW 7ED 1971

CLEGG PARKINSON & CO v EARBY GAS CO 1896 1 QB 592

WOLVERHAMPTON EW WATERWORKS CO v HAWKESFORD 1859 6 CB (NS) 336

SPRY EQUITABLE REMEDIES 5ED 1997

BYRNE & BINCHY ANNUAL REVIEW OF IRISH LAW 2003 P 276-277

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(4)

CRILLY v T & J FARRINGTON LTD 2001 3 IR 251

COLLINS & O'REILLY CIVIL PROCEEDINGS & THE STATE 2ED 2004 PAR 11-25

DOYLE PROCEDURES REMEDIES & THE PLACE OF ECHR ACT WITHIN THE EXISTING CONSTITUTIONAL SYSTEM 20.11.2007

DONEGAN v DUBLIN CITY COUNCIL UNREP LAFFOY 8.5.2008 2008 IEHC 288

PULLEN v DUBLIN CITY COUNCIL UNREP IRVINE 12.12.2008 2008 IEHC 379

CONVEYANCING ACT 1881 S14 (UK)

KAVANAGH v GOVERNOR OF MOUNTJOY PRISON 2002 3 IR 97

INTERNATIONAL CONVENANT ON CIVIL & POLITICAL RIGHTS ART 26

OFFENCES AGAINST THE STATE ACT 1939 S47(2)

CONSTITUTION ART 29.2

CONSTITUTION ART 29.3

CONSTITUTION ART 15.2.1

CONSTITUTION ART 29.6

CONSTITUTION ART 34.1

MCGIMPSEY v IRELAND 1988 IR 567 1989 ILRM 209 1988 9 2565

MCDONNELL v IRELAND 1998 1 IR 134

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(2)(a)

MAHON v BUTLER 1997 3 IR 369

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963

OGUEKWE v MIN FOR JUSTICE & ORS UNREP SUPREME 1.5.2008 2008 IESC 25

FOLEY v SUNDAY NEWSPAPERS 2005 1 IR 88

MCCANN v UK 1996 21 EHRR 97

CONNORS v UK 2005 40 EHRR 189

LEONARD v DUBLIN CITY CO CO UNREP DUNNE 31.3.2008 2008 IEHC 79

R v DPP 1999 3 WLR 972

BLECIC v CROATIA 2006 43 EHRR 1038

HANDYSIDE v UK 1979-1980 1 EHRR 737

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S1(1)

CARMODY v MIN FOR JUSTICE & ORS UNREP LAFFOY 21.1.2005 2005/9/1839 2005 IEHC 10

KOZHUKAROV v MIN FOR JUSTICE & ORS UNREP CLARKE 14.12.2005 2005/35/7380 2004 IEHC 424

MAKUMBI v MIN FOR JUSTICE & ORS UNREP FINLAY-GEOGHEGAN 15.11.2005 2005/38/403 2005 IEHC 403

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 ART 2

CONSTITUTION 40.3.2

HOUSING (MISCELLANEOUS PROVISIONS ACT) ACT 1997 S16

ANUFRIJEVA v SOUTHWARK LONDON BC 2004 1 AER 833

RESIDENTIAL TENANCIES ACT 2004 S197

RSC O.50 r6(2)

INJUNCTIONS

Interlocutory

Prohibitory - Injunction sought to restrain eviction from local authority house for alleged anti-social behaviour - Whether serious question to be tried - Whether damages adequate remedy - Balance of convenience - Whether respondent performing functions in manner compatible with European Convention on Human Rights - Whether court having jurisdiction to grant perpetual injunction to restrain breach of duty under European Convention on Human Rights at trial - Whether implementation of warrant for possession would breach respondent's duty to act in accordance with European Convention on Human Rights - Whether interlocutory injunction should be granted - Housing Act 1966 (No 21), s 62 - European Convention on Human Rights Act 2003 (No 20), ss 1, 2 and 3 - Campus Oil v Minister for Industry (No. 2) [1983] IR 88, Ferris v Ward [1998] 2 IR 194 and Controller of Patents v Ireland [2001] 4 IR 229 applied; Dublin City Council v Fennell [2005] 1 IR 604 and Pullen v Dublin City Council [2008] IEHC 379 (Unrep, Irvine J, 12/12/2008) considered; Mahon v Butler [1997] 3 IR 369 distinguished - Injunction granted (2007/7804P - Murphy J - 18/3/2009) [2009] IEHC 122

Byrne v Dublin City Council

Facts: The applicant sought an interlocutory injunction restraining the respondents from evicting her from her residence, which she rented from the first named respondent. The respondent had obtained a warrant to evict the applicant on the grounds of alleged improper and anti-social behaviour by members of her family. The applicant obtained barring orders against two of her sons, who had been causing difficulties in her home. The applicant asserted that, since she was not given an opportunity to confront her accusers, a violation of the European Convention on Human Rights, in particular Article 6 thereof, had occurred. The applicant also claimed that the respondent failed to respect her rights under Article 8 in respect of her private and family life and her home. The applicant intended to seek at the trial of the action, a declaration pursuant to the Act of 2003 that s.62 of the 1966 Act was incompatible with the State’s obligations under the aforementioned Articles of the Convention, a declaration that the respondent failed to perform its functions in a manner compatible with the State’s obligations under the Convention, an injunction restraining the respondent from taking any further steps in the eviction of the applicant and if appropriate, damages under s. 3 of the 2003 Act.

Held by Murphy J. in granting an interlocutory injunction: That the applicant had a real prospect of securing a perpetual injunction at trial. The issue regarding the court’s jurisdiction to grant a perpetual injunction restraining a breach of the duty imposed by s. 3 of the Act of 2003 involved a complex question of law. There was a serious question to be tried as to whether the proposed eviction of the applicant would be contrary to s.3 and consequently unlawful. The consequences of the proposed eviction for the applicant were severe as she had no alternative accommodation. The respondent was continuing to receive rent from the applicant and the individuals in relation to whom the complaints of anti-social behaviour related had been barred from the premises. In the circumstances, the balance of convenience lay in favour of granting the interlocutory injunction sought in the terms sought.

Gifford v. Dublin City Council (Unreported, High Court, Smyth J., 20 November 2007) and Donegan v. Dublin City Council (Unreported, High Court, Laffoy J., 8 May 2008 distinguished.

Reporter: L.O’S.

1

Mr Justice Roderick Murphy delivered 18th day of March, 2009.

1. The applicant's case
2

The applicant in this motion seeks an interlocutory injunction to restrain Dublin City Council, the respondent and also her landlord, from evicting her from her residence at 19 Belcamp Crescent, Priorswood, Dublin 17.

2. Facts pleaded
3

The applicant averred that she had resided at 19 Belcamp Crescent for approximately five years and had been a tenant of the respondent for more than 20 years. Seven of her ten children resided with her when these proceedings were instituted on 22 nd October, 2007.

4

On 28 th November 2006 she received from the respondent a Notice to Quit and Demand for Possession requiring her to vacate the premises on or before 15 th January, 2007 on the grounds of alleged improper and anti-social behaviour of members of her family. Having no alternative accommodation available for her family, she did not comply. A summons dated 14 th March, 2007 was served on her pursuant to s. 62 (1) of the Housing Act, 1966 ("the 1966 Act"), as amended by s. 13 of the Housing Act, 1970. The summons required her to appear at Dublin District Court on 3 rd May, 2007 in relation to the matter. The District Court granted a warrant for her eviction on 10 th May 2007, but imposed a stay on its execution until 4 th October, 2007. The applicant made it clear at that point that she was...

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