Dublin City Council v Fennell

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 12 May 2005
• Neutral Citation: [2005] IESC 33
• Date: 12 May 2005
• Court: Supreme Court
• Docket Number: [S.C. No.

DUBLIN CITY COUNCIL v FENNELL & ORS

IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT, 1947

AND IN THE MATTER OF SECTION 62 OF THE HOUSING ACT, 1966,

AS AMENDED BY SECTION 13 OF THE HOUSING ACT, 1970

DUBLIN CIRCUIT

COUNTY OF THE CITY OF DUBLIN

BETWEEN

DUBLIN CITY COUNCIL

PLAINTIFF/RESPONDENT

AND

JEANETTE FENNELL

DEFENDANT/APPELLANT

THE ATTORNEY GENERAL

INTERVENING PARTY

AND

THE HUMAN RIGHTS COMMISSION

AMICUS CURIAE

[2005] IESC 33

Denham J.

McGuinness J.

Fennelly J.

McCracken J.

Kearns J.

[507/04]

THE SUPREME COURT

COURTS:

Jurisdicton

District Court - Appeal to Circuit Court - De novo nature - Appellate function - Vested rights - Housing Act 1966 (No 21), s 62 - European Convention on Human Rights Act (No 20) (507/2004 - Supreme Court - 12/5/2005) [2005] IESC 33 - [2005] 2 ILRM 288 Dublin City Council v Fennell

HOUSING:

Housing authority

Notice to quit - Warrant for possession granted by District Court - No requirement on local authority to justify its decision to terminate tenancy - Whether infringement of European Convention - Whether Act incorporating Convention applies - Housing Act 1966 (No 21), s 62 - European Convention on Human Rights Act (No 20) (507/2004 - Supreme Court - 12/5/2005) [2005] IESC 33 Dublin City Council v Fennell

STATUTORY INTERPRETATION:

Construction

Retrospective effect - Statute incorporating European Convention on Human Rights - Requirement that statutory provisions be applied by courts in manner compatible with Convention provisions - Prospective effect - Whether retrospective effect - Events occurred before statute became operative - How statute operates where legal proceedings commenced before its operative date but to be determined on appeal subsequent to its coming into force - Presumption against retrospectivity - Whether retrospectivity - Interference with vested rights of parties in litigation - Principle of legal certainty - Intention of Parliament - Hamilton v Hamilton [1982] IR 466; The Health (Amendment) (No 2) Bill 2004 (Unrep, SC, 16/2/2005; [2005] IESC 7); Lelimo v Minister for Justice [2004] IEHC 165; [2004] 2 IR 178;In re McKerr [2004] UKHL12, [2004] 1 WLR 807; R v Lambert [2001] UKHL 37, [2002] 2 AC. 545; Wainwright v Home Office [2002] QB 1334; Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712; Wilson v First County Trust Ltd. (No 2) [2003] UKHL 40; [2004] 1 AC 816 considered - European Convention on Human Rights Act 2003 (No 20), ss 2 and 3 - Constitution of Ireland 1937, Article 15.5 (507/2004 - Supreme Court - 12/5/2005) [2005] IESC 33 Dublin City Council v Fennell

Facts: This consultative case stated from the Circuit Court concerned the retrospectivity of the appplication of the European Convention on Human Rights Act 2003.

Held by the Supreme Court (Denham, McGuinness, Fennelly, McCracken and Kearns JJ) in answering the three questions raised in the negative that the European Convention on Human Rights Act 2003 could not be seen as having retrospective effect or as affecting past events.

Reporter: R.W.

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 (COMMENCEMENT) ORDER 2003 SI 483/2003

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S9(2)

COURTS OF JUSTICE ACT 1947 S16

HOUSING ACT 1988 S11(2)(b)

HOUSING ACT 1966 S62(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

HOUSING ACT 1970 S13

O'ROURKE, STATE v KELLY 1983 IR 58

DUBLIN CORPORATION v HAMILTON 1999 2 IR 486 1998 2 ILRM 542

HOUSING ACT 1966 S62(3)

BYRNE v JUDGE JAMES SCALLY UNREP HIGH 12.10.2000 2000/3/1065

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 1ST PROTOCOL ART 1O

LAIGHLEIS, RE 1960 IR 93

CONSTITUTION ART 29.6

CONSTITUTION ART 15.2.1

HOGAN ECHR & IRISH LAW 2004 14

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2(2)

INTERPRETATION ACT 1937 S9(1)

MAXWELL INTERPRETATION OF STATUTES 12ED 215

CRAIES STATUTES OF LAW 7ED 387

HAMILTON v HAMILTON 1982 IR 466

FAMILY HOME PROTECTION ACT 1976 S3

MCKERR, RE 2004 1 WLR 807

HUMAN RIGHTS ACT 1998 6(1) (UK)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)

LELIMO v MIN FOR JUSTICE 2004 2 IR 178

WILSON v FIRST COUNTY TRUST LTD (NO2) 2003 3 WLR 568

CONSUMER CREDIT ACT 1974 S60

CONSUMER CREDIT ACT 1974 S127(3)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

HUMAN RIGHTS ACT 1998 3(1) (UK)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(1)EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(2)

NAGLE, DPP v FLYNN 1987 IR 534 1989 ILRM 65

CONSTITUTION ART 15.5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 7

MCKEE v CULLIGAN UNREP SUPREME 15.11.1991 1991/13/3164

KELLY ON THE CONSTITUTION 3ED 129

DUBLIN HEATING CO LTD v HEFFERON 1993 3 IR 177 1992 ILRM 51

COMPANIES ACT 1990 S33

EXTRADITION (EUROPEAN CONVENTION ON THE SUPPRESSION OF TERRORISM) ACT 1987 S3

ART 26 OF THE CONSTITUTION & HEALTH (AMDT)(NO 2) BILL 2004, IN RE 2005 1 ILRM 401

CONSTITUTION ART 26

INTERPRETATION ACT 1937 21(1)

BENNION STATUTORY INTERPRETATION 4ED S97

O'H v O'H 1990 2 IR 558 1991 ILRM 108

ANTONELLI v SECRETARY OF STATE FOR TRADE & INDUSTRY 1998 QB 948

ESTATE AGENTS ACT 1979

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4

HUMAN RIGHTS ACT 1998 S71(b)(UK)

HUMAN RIGHTS ACT 1998 S22(4) (UK)

SECRETARY OF STATE FOR SOCIAL SECURITY v TUNNICLIFFE 1991 2 ALL ER 712

WAINWRIGHT v HOME OFFICE 2002 QB 1334

R v LAMBERT 2001 3 WLR 206

1 Mr. Justice Kearns delivered the 12th day of May, 2005

2 This case concerns important issues of retrospectivity in the application of the European Convention on Human Rights Act, 2003(hereinafter referred to as "the 2003 Act"), which came into law on the 31st December, 2003, by order of the Minister for Justice under Statutory Instrument 483/2003 made pursuant to s.9(2) of the 2003 Act. The case comes before this court by way of consultative case stated from the Circuit Court pursuant to s.16 of the Courts of Justice Act, 1947.

3 According to its long title, the purpose of the 2003 Act is to enable further effect to be given, subject to the Constitution, to certain provisions of the European Convention of Human Rights. The Convention itself was adopted by the State in Rome on the 4th November, 1950, and the Irish instrument of ratification was deposited on the 25th February, 1953. The Convention was then in form an agreement by the High Contracting Parties with one another. However, while the Convention was and is an effective agreement and statement of international law, the Oireachtas did not determine until 2003 that the Convention was to be part of the domestic law of the State. The 2003 Act, to which I will shortly refer in greater detail, does not purport to incorporate the Convention directly into domestic law, but rather imposes an obligation that, when interpreting or applying any statutory provision or rule of law, a court shall, insofar as is possible, and 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. The 2003 Act also provides that every organ of the State shall, subject to any statutory provision or rule of law, perform its functions in a manner compatible with the State's obligations under the Convention provisions. A party may also seek from the High or Supreme Court a declaration that a statutory provision or rule of law is incompatible with the State's obligations under the Convention provisions, and where such a declaration is made certain consequences as detailed in the Act then follow.

4 The case stated arises in the following circumstances.

5 On the 20th March, 1996, Dublin City Council, in pursuance of its obligations under the Housing Act, 1966, made a letting of a dwelling situate at 146 Balbutcher Lane, Ballymun, Dublin 11 to the appellant under a written tenancy agreement entered into on that date.

6 It was a term of tenancy agreement that neither the tenant, nor any member of her household, should cause any nuisance, annoyance or disturbance to any neighbours, their children or visitors or to Corporation staff. It was a further term of the tenancy agreement that if the tenant was evicted following a breach of this term, the tenant would be deemed for the purpose of rehousing to have deliberately rendered herself homeless within the meaning of s.11(2)(b) of the Housing Act, 1988, and as a result would not be provided with another home by the Corporation until such time as the Corporation might be satisfied that the evicted tenant and her family were capable of living and were agreeable to live in the community without causing a further breach of the condition.

7 Clause 26 of the tenancy agreement provided that the tenancy could be terminated at any time on the giving of four weeks notice by the tenant or the Corporation. To this end, a Notice to Quit could be served by the Corporation incorporating a demand for possession pursuant to s.62 (1) of the Housing Act, 1966.

8 A decision to serve a notice to quit in respect of the premises was made on the 13th June, 2003, and a Notice to Quit dated 26th June, 2003, was served on the appellant on the 7th July, 2003. The Notice to Quit demanded delivery up of the premises on the 1st September, 2003, and further contained a statement of the respondent's intention to make an application under subs.(1) of s.62 of the Housing Act, 1966, in the event of the requirements of the demand not...