O'Dea v Dublin City Council

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 04 March 2011
• Neutral Citation: [2011] IEHC 100
• Court: High Court
• Date: 04 March 2011

O'Dea v Dublin City Council

BETWEEN

MATTHEW O'DEA

PLAINTIFF

AND

DUBLIN CITY COUNCIL

DEFENDANT

[2011] IEHC 100

[No. 7216P/2010]

THE HIGH COURT

PRACTICE AND PROCEDURE

Costs

Interlocutory injunction part heard - Matter settled - No event - Discretion - Function of court where no event - Re-housing application - Whether plaintiff or defendant entitled to costs to point proceedings ended - Whether discretion in interlocutory applications - Whether court had function in relation to liability for costs - Whether result which determined dispute - Whether accepting offer constituted event - Whether possible to justly adjudicate on upon liability for costs - Whether improper for court to attempt to predict outcome - Callagy v Minister for Education and Science (Unrep, SC, 23/5/2003); Garibov v Minister for Justice [2006] IEHC 371, (Unrep, Herbert J, 16/11/2006); Maha Lingam v Health Service Executive [2005] IESC 89, (Unrep, SC, 4/10/2005) and Dubcap Ltd v Microchip Ltd (Unrep, SC, 9/12/1997) considered - Housing Act 1988 (No 28), s 10 - Rules of the Superior Courts 1986 (SI 15/1986) O 99, r 1(4A) - No order made (2010/7216P - Laffoy J - 4/3/2011) [2011] IEHC 100

O'Dea v Dublin City Council

Facts: The plaintiff had sought an order in interlocutory proceedings directing the defendant to immediately rehouse him. He had believed that his life was in danger if he continued to reside in the north inner city area. The Court was asked to make an order for costs in circumstances where an application for the interlocutory injunction had come before the Court in 2010 but was not determined by the Court. The plaintiff contended that he was entitled to an order for costs to the point at which they came to an end. The Court considered the effect of Order 99, rule 1 (4A), Rules of the Superior Courts 1986.

Held by Laffoy J. that the parties had imposed a task on the Court which was not its function in a context where the proceedings were effectively concluded. The proper manner was to make no order for costs, so that each party bore his or its own costs.

Reporter: E.F.

HOUSING ACT 1988 S10

HOUSING ACT 1988 S10(1)

HOUSING ACT 1988 S2

RSC O.99 R1(4A)

CALLAGY v MIN FOR EDUCATION & ORS UNREP SUPREME 23.5.2003 2003/8/1628

GARIBOV v MIN FOR JUSTICE & ORS UNREP HERBERT 16.11.2006 2006/26/5580 2006 IEHC 371

O.84 r 20(1)

MAHA LINGAM (ORSE MAHALINGHAM) v HEALTH SERVICE EXECUTIVE (HSE) UNREP SUPREME 4.10.2005 2005/36/7565 2005 IESC 89

DUBCAP LTD v MICROCHIP LTD UNREP SUPREME 9.12.1997 1998/17/6503

1 Judgment of Miss Justice Laffoy delivered on the 4th day of March, 2011.

1. The issue

2 2 1.1 The issue with which the Court is concerned in this judgment is what, if any, order for costs should be made in circumstances where an application for an interlocutory injunction came on for hearing before the Court on Thursday, 16 ^th December, 2010, but was not determined by the Court. Having been part heard, the application was adjourned until the following day and from thence to Tuesday, 21 ^st December, 2010. On that day, the Court was informed by counsel for the plaintiff that the plaintiff would not be proceeding with the application for interlocutory relief. That was because the plaintiff had achieved an outcome to what he was seeking from the defendant which he considered satisfactory. In fact, the Court was told that, because of the outcome, the plaintiff would not be proceeding with the substantive action. The only outstanding matter between the parties was costs.

3 3 1.2 The position of the parties in relation to costs is that the plaintiff contends that he is entitled to an order for costs of the proceedings to the point at which they came to an end against the defendant, whereas the defendant contends that it is entitled to a similar order against the plaintiff. The Court has had the benefit of helpful outline written submissions from both parties.

2. Factual background

4 2 2.1 The plaintiff became a tenant of the defendant in a two bedroom flat in the north inner city area of Dublin (the original flat) in succession to his mother on 11 ^th October, 2007. On succeeding to the tenancy, he was required to assume responsibility for arrears of rent in a sum in excess of €8,000 and he did so. Because he believed his life was in danger if he continued to reside in the original flat, the plaintiff had been seeking to be transferred by the defendant from the original flat to alternative accommodation for approximately a year and a half prior to the initiation of these proceedings.

5 3 2.2The solicitors acting for the plaintiff in these proceedings had been in correspondence with the defendant and had been seeking that he be transferred to new accommodation since late February 2010. The position being adopted by the defendant at that stage was that the plaintiff had been awarded a welfare priority for transfer from his then current address to housing Area B (Darndale/Belcamp/Raheny/Kilbarrack). However, there were other applicants with similar priority status of longer standing than the plaintiff who had to be considered as vacancies arose. Further, it was not possible to consider the plaintiff's application while the issue of the arrears of rent, which had not been discharged, remained unresolved. It was explicitly stated in a letter of 3 ^rd March, 2010 from the defendant to the plaintiff's solicitors that an offer by the plaintiff to endeavour to pay the rent arrears within twelve months if he was offered a transfer immediately was not a basis on which the transfer application could be approved. The plaintiff's solicitors wrote again to the defendant on 30 ^th June, 2010, outlining recent incidents which gave rise to a deep concern on the part of the plaintiff that his life was threatened and his concerns for his partner and his three children were outlined. Proceedings in this Court seeking an injunction requiring immediate re-housing of the plaintiff in safe accommodation and away from the location of his original flat were threatened, if he was not transferred. It would seem that there was no response to that letter before proceedings were issued.

6 4 2.3 The plenary summons in these proceedings was issued on 27 ^th July,2010. Contemporaneously with the issuance of the plenary summons, short service was obtained for leave to issue a notice of motion returnable for 30 ^th July, 2010 in which the plaintiff sought interlocutory relief. With the leave of the Court the proceedings were progressed during the long vacation by both parties. On 17 ^th September, 2010 the principal replying affidavit to the plaintiff's application for an interlocutory injunction sworn by Aaron Bregazzi, the project estate officer of the defendant, was filed. While the defendant's perspective of the history of the plaintiff's tenancy and his dealings with the plaintiff were set out and certain factual matters were controverted, the position adopted by the defendant was that the concerns of the plaintiff were matters for An Garda Síochána. In relation to the plaintiff's listing for transfer on foot of his priority on "exceptional social grounds" of which the plaintiff had been apprised, it was averred that there was no suitable accommodation available to offer the plaintiff and the defendant was not in the position at the time to offer the plaintiff accommodation in his area of preference, meaning Area B. The position was summed up as that the applicant had been granted priority status and he was then on the waiting list awaiting suitable accommodation is his area of preference.

7 5 2.4 Correspondence between the plaintiff's solicitors and the defendant's law agent resumed on 23 ^rd September, 2010. The plaintiff's solicitors' position was that the threats to the plaintiff had escalated. The plaintiff had left the original flat and was residing with friends and family. The defendant was called upon to exercise powers conferred on it under the Housing Acts 1966 to 2010 to deal with emergency situations to re-house the plaintiff. The response of the defendant was that the plaintiff was not homeless and would not be considered as homeless because he was a tenant of the defendant. It was reiterated that the plaintiff enjoyed priority and had not reached a position, presumably, meaning on the waiting list, where an allocation could be made for the appropriate area. There was no provision for a higher level of priority. Further information was sought as to the specific grounds on which it was alleged the plaintiff had a need for emergency accommodation and other matters. There was a comprehensive reply dated 28 ^th September, 2010 from the solicitors for the plaintiff, the essence of which was that the plaintiff was asking for emergency accommodation or financial resources to deal with his emergency until his long-term housing situation was resolved and, in particular, s. 10 of the Housing Act 1988 was referred to. It was commented that, while the plaintiff had been persistently told that rent arrears was a barrier to a transfer, that did not appear to be part of the defendant's "case on paper". In response to that comment, in a letter of 19 ^th October, 2010 the defendant's law agent informed the plaintiff's solicitors that he had been instructed that the accumulated rent arrears of the plaintiff would, in the particular circumstances of the case, not impede the plaintiff's request for a transfer and could be carried forward to any new tenancy granted. However, apart from that, the defendant maintained its previous stance. It was stated that the plaintiff had been informed that he had been granted priority in Area B on exceptional social grounds but suitable premises fit for his housing needs had not become available. There were other persons on the list with priority and the plaintiff could not be allowed to...