Donegan v Dublin City Council

JurisdictionIreland
CourtSupreme Court
Judgment Date27 February 2012
Date27 February 2012
Docket Number(S.C. Nos.

Supreme Court

(S.C. Nos. 265 of 2008 and 34, 54 & 65 of 2009)
Donegan v. Dublin City Council
Anthony Donegan, Plaintiff
and
Dublin City Council, Ireland and The Attorney General, Defendants. Dublin City Council, Plaintiff v. Liam Gallagher , Defendant and The Attorney General, Notice Party

Cases mentioned in this report:-

Associated Provincial Picture Houses Ld. v. Wednesbury CorporationELRUNK [1948] K.B. 223; [1947] 2 All E.R. 680.

Blecic v. Croatia HRC (App. No. 59532/00) (2005) 41 E.H.R.R. 13.

Bristol Council v. Clark WLRUNK[1975] 1 W.L.R. 1443; [1975] 3 All E.R. 976.

Bryan v. United KingdomHRC (App. No. 19178/91) (1996) 21 E.H.R.R. 342.

Buckley v. United Kingdom HRC (App. No. 20348/92) (1996) 23 E.H.R.R. 101.

Byrne v. Scally (Unreported, High Court, O Caoimh J, 12th October 2000).

Chapman v. United KingdomHRC (App. No. 27238/95) (2001) 33 E.H.R.R. 399.

Connors v. United KingdomHRC (App. No. 66746/01) (2005) 40 E.H.R.R. 189.

Doherty v. Birmingham City CouncilUNKUNK [2006] EWCA Civ. 1739, [2007] L.G.R. 165.

Donegan v. Dublin City CouncilUNK [2008] IEHC 288, (Unreported, High Court, Laffoy J., 8th May, 2008).

Doran v. Ireland HRC (App No. 50389/99) (2006) 42 E.H.R.R. 13.

Dublin City Council v. FennellUNKIRDLRM [2005] IESC 33, [2005] 1 I.R. 604; [2005] 2 I.L.R.M. 288.

Dublin City Council v. GallagherUNK [2008] IEHC 354, (Unreported, High Court, O Néill J., 11th November, 2008).

Dublin Corporation v. Hamilton IRDLRM[1999] 2 I.R. 486; [1998] 2 I.L.R.M. 542.

Dublin Corporation v. McDonnell [ 1946] I.R. Jur. Rep. 18.

Education Sec. v. Tameside B.C. ELRWLRUNK[1977] A.C. 1014; [1976] 3 W.L.R. 641; [1976] 3 All E.R. 665.

Flanagan v. University College Dublin IR[1988] 1 I.R. 724.

Harrow LBC v. Qazi UNKELRWLRUNK[2003] UKHL 43, [2004] 1 A.C. 983; [2003] W.L.R. 792; [2003] 4 All E.R. 461.

In re Haughey IR[1971] I.R. 217.

Howard v. Commissioners of Public Works IR[1994] 1 I.R. 101.

Kay v. Lambeth LBC UNKELRWLRUNK[2006] UKHL 10, [2006] 2 A.C. 465; [2006] 2 W.L.R. 570; [2006] 4 All E.R. 128.

Kerry County Council v. McCarthy DLRM[1997] 2 I.L.R.M. 481.

Larkos v. Cyprus HRC (App. No. 29515/95) ( 2000 ) 30 E.H.R.R. 597.

Leeds City Council v. PriceUNKWLR [2005] EWCA Civ 289; [2005] 1 W.L.R. 1825.

Leonard v. Dublin City Council UNK[2007] IEHC 404, (Unreported, High Court, Peart J., 3rd December, 2007).

Leonard v. Dublin City CouncilUNK [2008] IEHC 79, (Unreported, High Court, Dunne J., 31st March, 2008).

McCann v. United Kingdom (App. No. 19009/04) (Unreported, European Court of Human Rights, 13th May, 2008).

J. McD. v P.L. UNKIR[2009] IESC 81, [2010] 2 I.R. 199.

McGrath v. McDermott IR[1988] I.R. 258.

McMichael v. United KindgomHRC (App. No. 16424/90) (1995) 20 E.H.R.R. 205.

Manchester City Council v. PinnockWLRELR [2010] UKSC 45, [2010] 1 W.L.R. 713; [2011] 2 A.C. 104.

Meadows v. Minister for Justice UNKIRDLRM[2010] IESC 3, [2010] 2 I.R. 701; [2011] 2 I.L.R.M. 157.

O'Keeffe v. An Bord PlenálaIR [1993] 1 I.R. 39.

Paulic v. Croatia (App. No. 3572/06) (Unreported, European Court of Human Rights, 22nd October, 2009).

R v. A (No. 2)ELRUNK [2002] 1 A.C. 45; [2001] All E.R. 1.

R (Bewry) v. Norwich City CouncilUNK [2001] EWHC Admin 657, [2002] H.R.L.R. 21.

R (Coombes) v. Secretary of State for Communities and Local GovernmentUNKUNK [2010] EWHC 666 (Admin), [2010] 2 All E.R. 940.

R. (Quinn) v. Justices of Tipperary. (1883) 12 L.R. Ir. 393.

Rock v. Dublin City Council (Unreported Supreme Court, 8th February, 2006).

Runa Begum v. Tower Hamlets London Borough Council UNKELRWLRUNK[2003] UKHL 5, [2003] 2 A.C. 430; [2002] 3 W.L.R. 338, [2003] 1 All E.R. 731.

Smith v. EvansUNKWLRUNK [2007] EWCA Civ. 1318, [2008] 1 W.L.R. 661; [2008] L.G.R. 71.

The State (Keegan) v. Stardust Compensation TribunalIRDLRM[1986] I.R. 642; [1987] I.L.R.M. 202.

State (Kathleen Litzouw) v. Dublin Corporation DLRM[1981] I.L.R.M. 273.

The State (O'Rourke) v. KellyIR [1983] I.R. 58.

Sweetman v. An Bord PleanálaUNKIRDLRM [2007] IEHC 153, [2008] 1 I.R. 277; [2007] 2 I.L.R.M. 328.

Tsfayo v. United Kingdom HRC (App. No. 60860/00) (2009) 48 E.H.R.R. 18.

Housing - Housing authority - Warrant for possession - Dispute on facts - Application to District Court for warrant for possession - Provision for summary procedure on application for warrant - Judicial review -- Whether alternative remedy - Whether requirement for independent hearing on merits - Whether infringement of European Convention on Human Rights - Landlord and Tenant Law Amendment Act Ireland 1860 (23 & 24 Vict., c. 154), s. 86 - Housing Act 1966 (No. 21), ss. 11, 60 and 62 - European Convention on Human Rights Act 2003 (No. 20), ss. 2, 3, 4 and 5 - (United Kingdom) European Human Rights Act 1998 (c. 42), s. 3 - European Convention on Human Rights and Fundamental Freedoms 1950, articles 6 and 8.

Human rights - Home - Right to respect for home - Whether interference in accordance with law - Whether interference having legitimate aim and necessary in democratic society - Independent hearing - Right to fair procedures - Interpretative obligation - Requirement that statutory provisions be applied by courts in manner compatible with Convention - Extent of obligation - Express provision for summary procedure - Whether interpretative obligation giving rise to discretion to explore merits of matter - Whether District Court entitled to address merits of procedure - Whether adequate procedural safeguards provided - Whether availability of judicial review providing adequate procedural safeguard - Rules of the Superior Courts 1986 (S.I. No. 15), O. 60 - Housing Act 1966 (No. 21), s. 62 - European Convention on Human Rights Act 2003 (No. 20), ss. 2, 3, 4 and 5 - (United Kingdom) European Human Rights Act 1998 (c. 42), s. 3 - Constitution of Ireland 1937, Article 40.1.3ø - European Convention on Human Rights and Fundamental Freedoms 1950, articles 6 ,8, 13 and 14.

Words and phrases - "In any proceedings" - Whether court could grant declaration of incompatibility in context of consultative case stated - European Convention on Human Rights Act 2003 (No. 20), s.5.

Appeal from the High Court

The facts have been summarised in the headnote and are more fully set out in the judgment of McKechnie J., infra.

By notices of appeal dated the 19th and 20th February, 2009, the Attorney General and housing authority appealed the order of the High Court (O Néill J.) in Dublin City Council v. GallagherUNK[2008] IEHC 354 to the Supreme Court. The tenant brought a cross-appeal by way of notice of appeal dated the 24th February, 2009.

By notice of appeal dated the 29th July, 2009, the Attorney General appealed the order of the High Court (Laffoy J.) in Donegan v. Dublin City Council UNK[2008] IEHC 288.

The appeals were heard together by the Supreme Court (Murray C.J., Hardiman, Fennelly, Finnegan, and McKechnie JJ.) on the 22nd and 23rd May, 2011.

Section 62(1) of the Housing Act 1966 provides:-

"In case,

  1. (a) there is no tenancy in -

    1. (i) a dwelling provided by a housing authority under this Act,

    2. (ii) any building or part of a building of which the authority are the owner and which is required by them for the purposes of this Act, or

    3. (iii) a dwelling of which the National Building Agency Limited is the owner,

whether by reason of the termination of a tenancy or otherwise, and

  1. (b) there is an occupier of the dwelling or building or any part thereof who neglects or refuses to deliver up possession of the dwelling or building or part thereof on a demand being made therefor by the authority or Agency, as the case may be, and

  2. (c) there is a statement in the demand of the intention of the authority or Agency to make application under this subsection in the event of the requirements of the demand not being complied with,

the authority or Agency may (without prejudice to any other method of recovering possession ) apply to the justice of the District Court having jurisdiction in the district court district in which the dwelling or building is situate for the issue of a warrant under this section."

Section 62(3) of the Act of 1966, provides:-

"Upon the hearing of an application duly made under subsection (1) of this section, the justice of the District Court hearing the application shall, in case he is satisfied that the demand mentioned in the said subsection (1) has been duly made, issue the warrant."

Section 2(1) of the European Convention on Human Rights Act 2003 provides:-

"In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State's obligations under the Convention provisions."

Article 6 of the European Convention on Human Rights 1950 provides, inter alia, that in the determination of an individual's civil rights and obligations, each person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

Article 8 of the European Convention on Human Rights provides,inter alia, for the protection of the right to respect for the home. Interference by a public authority with the exercise of that right is prohibited save where it is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.

The housing authority applied for a warrant for possession and the tenant in each case sought to challenge the warrant for possession as the facts upon which the applications were based were in dispute. In Donegan v. Dublin City Council UNK [2008] IEHC 288, the housing authority claimed that the tenant was in breach of his tenancy agreement as a search of the premises had...

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