Carroll v Residential Tenancies Board

• Jurisdiction: Ireland
• Judge: Ms. Justice Bolger
• Judgment Date: 31 May 2022
• Neutral Citation: [2022] IEHC 326
• Court: High Court
• Docket Number: [2021/223 MCA]

Between

Reginald Carroll

Appellant

and

The Residential Tenancies Board

First Named Respondent

and

Terry Roland and Margaret Roland

Second Named Respondents

[2022] IEHC 326

[2021/223 MCA]

THE HIGH COURT

JUDGMENT of Ms. Justice Bolger delivered on the 31 ^st day of May, 2022

Introduction

1 . This an appeal by a tenant pursuant to s. 123 of the Residential Tenancies Act 2004 (as amended) against a determination order issued by the first named respondent (hereinafter referred to as the “RTB”) dated 28 July 2021. For the reasons set out below, I am refusing the appellant's appeal and any relief pursuant to s.123 (5). The determination of the RTB upholding the notice of termination stands.

2 . In accordance with s. 123 (3) of the Act, any of the parties concerned may appeal to the High Court on a point of law. The appellant, who is a lay litigant, brought his appeal by notice of motion dated 23 August 2021 grounded on his affidavit. The parties filed several further affidavits as well as written legal submissions.

3 . The appellant sought further relief by way of a notice of motion dated 18 February 2022 but that motion was not properly issued, and therefore not properly before this Court. I have not considered that motion or the relief sought therein in this application.

4 . The appellant seeks a number of irrelevant reliefs including discovery, an order quashing the seven-day notice and reinstating his Part 4 tenancy, and damages. However, s.123 only allows the court to cancel or vary the determination order that was made by the RTB. That is the sole remit of this Court.

Background

5 . On 1 March 2020, the appellant entered into a tenancy agreement with the second named respondents (hereinafter referred to as “the landlords”) in respect of a property at Burtonport in Co. Donegal. On 18 January 2021, the landlords served a notice of determination on the appellant which cited six grounds for termination of the tenancy and gave a termination date of 28 January 2021. On 25 January 2021 the appellant applied to the RTB for dispute resolution, claiming that the notice of termination of 18 January 2021 was invalid. An adjudication hearing took place on 24 February 2021 which held against the appellant. The appellant appealed on 11 March 2021. The tenancy Tribunal hearing was scheduled for 11 May 2021 and on that date the appellant was granted an adjournment to allow him an opportunity to compel the attendance of a Garda Steede. The hearing reconvened on 9 June 2021. On that day of the Tribunal hearing, Garda Steede attended but explained that he was precluded for operational reasons from giving any information to the Tribunal while a separate garda investigation of the appellant's complaint against his landlord was in progress. The appellant applied for an adjournment so that the outcome of the Garda investigation would be known and the evidence gathered would be available for submission to the Tribunal. The Tribunal refused this application and later set out its reasons for doing so in its report. The hearing continued on 9 June and some evidence was heard, and resumed for further evidence on 18 June 2021. The Tribunal made its determination on 23 June 2021 and notified the RTB. The RTB made its determination order on 28 July 2021. After the Tribunal had made its determination on the 23 June, the appellant wrote to the Tribunal by email dated 26 July 2021, to which he attached a letter he had received from the DPP dated 21 July 2021 which confirmed that his complaint to the Gardaí had been decided locally. The appellant claimed that this demonstrated that Garda Steede had lied to the Tribunal, and he asked that Garda Steede now be forced to comply with his subpoena, and that the Tribunal's decision be delayed until his evidence was given. The appellant also said that he had expected to receive a transcription from the audio recording of the hearing, and highlighted what he claimed was an anomaly between an initial and subsequent version of the landlord's statement. He thanked the Tribunal for a good hearing. By email dated 27 July 2021, the RTB confirmed that the Tribunal hearing had concluded, no further submissions could be furnished, and the case could not be delayed or reheard as the hearing that concluded on 18 June 2021 was the final Tribunal hearing in the matter.

Determination

6 . The Tribunal upheld the termination and in its report set out the background, the evidence heard, and its findings in respect of the six grounds identified in the notice of termination along with its reasons for those findings. Grounds 2 and 5 of the six grounds were upheld.

7 . In respect of ground 2, the Tribunal made the following finding of fact:-

“The Tribunal has two accounts of the events that occurred in the early hours of 17 January 2021 at the house of Ms. Grace McDermott. The Tenant says that he went on foot to the house looking for his cat and that he had a torchlight. He said that he did not drive to the house but went on foot using a path on the bank that lies between the two houses. The witness, Ms. [Mc]Dermott says that she was awoken about 2:15 ^am by her daughter screaming and shouting, and who said that the Tenant was driving around the house.

Regardless of the disagreement between the two accounts, it is common case that the Tenant went with a torch or drove the car headlights to the neighbour's house at about 2:15am.

The Tribunal accepts the evidence of the neighbour that the behaviour of the Tenant did cause fear to a person living in the vicinity of the dwelling. The Tribunal is satisfied that this would cause fear to most people… [t]he Tribunal finds this behaviour to be anti-social behaviour as defined by section 17(1)(b) of the Act”.

8 . In respect of ground 5, the Tribunal made the following finding of fact:-

“It is common case that the landlord's wife took a space or shovel from the dwelling to her sister's [neighbouring] house, but the Tenant went by a path across the bank between the dwelling and the sister's house for the purpose of retrieving the spade, that he was carrying a garden fork or pitchfork and that the Landlord's wife dropped the spade.

The Tenant said in evidence that he wanted to retrieve the spade because it carried potential forensic evidence in relation to the altercation at the dwelling. The Landlord's wife appears to have taken the spade to remove it from the scene of the altercation because she considered it to be a weapon that had allegedly been used in that altercation.

The Tribunal considers that the evidence of the Landlord's wife who is coherent and logical and fits with the uncontroversial facts mentioned above. While the tenant may have felt that he needed to retrieve the spade for the reason set out above, it did not justify him threatening the Landlord's wife with a fork and posting her in great fear.

The Tribunal finds that the Tenant acted in a threatening manner against the Landlord's wife putting her in great fear as she had no refuge and her husband the Landlord was some distance away. The Tribunal finds that no other interpretation could possibly be put on the actions of the Tenant other than this. The Tribunal finds this behaviour to be antisocial behaviour as defined by Section 17(1)(b) of the Act”.

The court's jurisdiction pursuant to s. 123

9 . This is a statutory appeal on a point of law, the principles of which have been set out in a number of decisions including Deely v. The Information Commissioner [2001] 3 IR 439 and Fitzgibbon v. Law Society [2015] 1 IR 516. More recently O'Malley J. in Petecel v. Minister for Social Protection [2020] IESC 25 emphasised the narrow scope of this type of appeal.

10 . In Fitzgibbon, Clarke J. (as he then was) set out how errors of law might arise in a determination or in how a decision maker reached their conclusions, such as the lack of any evidence to support a finding, or an inference being drawn on facts which no reasonable decision maker could have drawn. Clarke J. referred to the high degree of deference to be paid by an appellate body to a decision of a first instance body on the facts.

11 . The only decision to which the applicant referred in his submissions was that of Barrett J. in Marwaha v. RTB [2016] IEHC 308 in which Barrett J. summarised four key principles as to the court's role in an appeal under s. 123 as follows:-

• “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 he Tribunal from primary facts could not reasonably have been drawn”.

12 . Barrett J., quite correctly, warned that those principles do not fall to be applied in a vacuum and do not give the court what he referred to as “free–wheeling authority” to embark upon a consideration of the Tribunal's determination.

13 . As well as citing the decision in Marwaha, the appellant referred in rather vague terms to the principle of constitutional fairness, Articles 6 and 14 of the European Convention of Human Rights, the principle of audi alteram...