Dublin City Council v Gallagher

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 11 November 2008
• Neutral Citation: [2008] IEHC 354
• Court: High Court
• Date: 11 November 2008

[2008] IEHC 354

THE HIGH COURT

[2007 No. 1582 SS]

Dublin City Council v Gallagher

In the matter of an application for a warrant under s.52 of the Courts

(Supplemental Provisions) Act 1961

And in the matter of an application for a warrant under s.62 of the Housing Act,

1966, as amended by s.13 of the Housing Act 1970

Between

Dublin City Council

Complainant

And

Liam Gallagher

Defendant

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

HOUSING ACT 1966 S62

HOUSING ACT 1970 S13

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52(1)

HOUSING ACT 1966 S60

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

LANDLORD & TENANT LAW AMDT ACT IRELAND 1860 S86 (UK)

HOUSING ACT 1966 S62(4)

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS FIRST PROTOCOL ART 1

CONNORS v UNITED KINGDOM 2005 40 EHRR 9

MCCANN v UNITED KINGDOM 2008 47 EHRR 40

DONEGAN v DUBLIN CITY COUNCIL & ORS UNREP LAFFOY 8.5.2008 2008 IEHC 288

LEONARD v DUBLIN CITY COUNCIL & ORS UNREP DUNNE 31.3.2008 2008 IEHC 79

DUBLIN CITY COUNCIL v FENNELL & ORS 2005 1 IR 604

DUBLIN CORP v MCDONNELL 1946 IJ 18

SUMMARY JURISDICTION (IRELAND) ACT 1851 S15 (UK)

SUMMARY JURISDICTION (IRELAND) ACT 1851 S15(3) (UK)

KEANE THE LAW OF LOCAL GOVT IN THE REPUBLIC OF IRELAND 1982 131

HUMAN RIGHTS ACT 1998 (UK) S3

POPLAR HOUSING & REGENERATION COMMUNITY ASSOCIATION LTD v DONOGHUE 2001 3 WLR 183

O'DONNELL v SOUTH DUBLIN CO COUNCIL UNREP LAFFOY 22.5.2007 2007 IEHC 204

HOUSING ACT 1988 S13(2)

R v A 2001 3 AER 1

YOUTH JUSTICE & CRIMINAL EVIDENCE ACT 1999 S41 (UK)

HUMAN RIGHTS ACT 1998 (UK) S3(1)

HOUSING ACT 1966 S62(3)

HOUSING ACT 1966 S62(1)

BUCKLEY v UNITED KINGDOM 1997 23 EHRR 101

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8.2

CONSTITUTION ART 40.3.1

HAUGHEY, IN RE 1971 IR 217

FLANAGAN v UNIVERSITY COLLEGE DUBLIN 1988 IR 724

CONSTITUTION ART 40

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(4)(B)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(4)(C)

HOUSING

Housing authority

Warrant for possession - Refusal of application to succeed to tenancy - Factual dispute regarding basis for refusal - Summary procedure on application for warrant - Whether infringement of European Convention on Human Rights and Fundamental Freedoms - Donegan v Dublin City Council [2008] IEHC 288, (Unrep, Laffoy J, 8/5/2008) and Connors v UK (2005) 40 EHRR 9 followed; McCann v UK (Application 19009/04, ECHR, 13/5/2008) and Leonard v Dublin City Council [2008] IEHC 79, (Unrep, Dunne J, 31/3/2008) distinguished; Dublin Corporation v McDonnell [1946] Ir Jur Rep 18 followed -Landlord and Tenant Law Amendment Ireland Act 1860 (23 & 24 Vict, c 154), s 86 - Housing Act 1966 (No 21), s 62 - European Convention on Human Rights Act 2003 (No 20), ss 2 and 5 - (United Kingdom) European Human Rights Act 1998 (c 42), s 3 - European Convention on Human Rights and Fundamental Freedoms, articles 6 and 8 - Case stated answered in favour of defendant (2007/1582SS - O'Neill J - 11/11/2008) [2008] IEHC 354

Dublin City Council v Gallagher

HUMAN RIGHTS

Right to respect for home

Right to fair procedures - Interpretative obligation - Requirement that statutory provisions be applied by courts in manner compatible with Convention provisions - Extent of obligation - Express provision for summary procedure - Whether interpretative obligation gave rise to discretion to explore merits of matter - Whether District Court entitled to address merits of the procedure - Whether adequate procedural safeguards provided - Whether availability of judicial review provides adequate procedural safeguard - Dublin City Council v Fennell [2005] IESC 33, [2005] 1 IR 604 applied; O'Donnell v South Dublin County Council [2007] IEHC 204, (Unrep, Laffoy J, 22/5/2007), Poplar Housing and Regeneration Community Association Ltd v Donoghue [ 2001] EWCA Civ. 595, [2002] 1 QB 48, R v A (No 2) [2001] UKHL 25, [2002] 1 AC 45, Buckley v UK (1997) 23 EHRR 101 and McCann v UK (Application 19009/04, ECHR, 13/5/2008) followed - Rules of the Superior Courts 1986 ( SI 15/1986), O 60 - Housing Act 1966 (No 21), s 62 - European Convention on Human Rights Act 2003, (No 20), ss 2 and 5 - (United Kingdom) European Human Rights Act 1998 (c 42), s 3 - Constitution of Ireland 1937, Article 40.1.3 - European Convention on Human Rights and Fundamental Freedoms, articles 6 and 8 - Case stated answered in favour of defendant (2007/1582SS - O'Neill J - 11/11/2008) [2008] IEHC 354

Dublin City Council v Gallagher

Facts: This matter came before the court by way of consultative case stated at the request of the defendant arising out the service by the complainant of a summons pursuant to s. 62 of the 1966 Act to recover possession of the premises in which the defendant resided and in relation to which the defendant had made an application to succeed to his late mother’s tenancy. The defendant’s application to succeed the tenancy of his mother was refused on the grounds that the defendant was not resident at the address in question and on the rent account for a period of two years prior to the death of his mother. There was a dispute on the facts between the complainant and the defendant. In proceedings before the District Court, the defendant raised the issue of the applicability of the European Convention on Human Rights Act 2003. The defendant alleged that there was a violation of his rights provided for in Articles 8 and 6 of the Convention due to the lack of procedural safeguards in the process operated by the complainant.

Held by O’Neill J. in granting a declaration pursuant to section 5 of the 2003 Act that s. 62 of the 1966 Act was incompatible with the Convention: That there was an obligation on the District Court, flowing from s. 2 of the Act of 2003, to interpret s. 62 of the Act of 1966, insofar as possible, in a manner compatible with the Convention. The absence of an adequate hearing by the complainants regarding the defendant’s tenancy application breached the defendant’s rights under Article 6. Furthermore, the restrictive nature of the s. 62 proceedings, resulting in the issuing of a warrant for possession of the defendant’s home deprived him of the procedural safeguards required by Article 8. Furthermore, judicial review was not an adequate remedy for the defendant.

Reporter: L.O’S

1 O'Neill J. delivered the 11th day of November 2008

2 This case comes before this Court as a consultative case stated pursuant to s. 52(1) of the Courts (Supplemental Provisions) Act 1961, the case having been stated by John Coughlan, a Judge of the District Court at the request of the defendant. The relevant facts as proved or admitted or agreed and as found by the learned District Judge, in summary, are as follows:-

3 The tenancy created by the complainant as housing authority in the premises situate at 11 Adare Road, Coolock, Dublin 17 was in the sole name of Mrs. Nancy Gallagher, the defendant's mother, as of 18 ^th February, 1999. Mrs. Gallagher died on 12 ^th July, 2005. The defendant was removed from the rent account of the said premises after he went to live with his partner in August 1995. The defendant lived with his partner from August 1995 until May/June 1997, when he returned to his live with his mother again. The defendant made an application to the complainant to succeed to his mother's tenancy on 25 ^th August, 2005. The defendant's application was rejected by letter dated 20 ^th September, 2005. The complainant found that the defendant did not fulfill either of the criteria as set down in the complainant's Scheme of Letting Priorities, which is a statement of the rules governing, inter alia, succession to tenancies, created by the complainant pursuant to s.60 of the Housing Act, 1966 (the Act of 1966).

4 Those criteria required that a son or daughter be resident at the address in question and be on the rent account for a period of two years prior to the death or departure of the tenant. The complainant did not accept that the defendant resided at his mother's home for the two years prior to his mother's death.

5 The defendant attended, at his request, a meeting with the complainant. He subsequently submitted additional documentation in respect of his application which supported his position of having resided at his mother's house continuously, save for the aforesaid period in the mid nineties when he lived with a partner. The defendant was notified by letter dated 5 ^th January, 2006 that his application had been unsuccessful. A Notice to Quit and Demand for Possession were issued and served on the personal representatives of the late Mrs. Gallagher and a Demand for Possession was then issued and served on the defendant. A Summons was later served by the complainant on the defendant under s.62 of the Act of 1966 to recover possession of the premises.

6 The learned District Judge made a finding of fact that, save for the period when the defendant resided with his partner, he resided with his mother and regarded that dwelling as his permanent residence. This finding was contrary to that made by the complainant which formed the basis of rejecting the applicant's application to succeed to his mother's tenancy.

7 In the District Court the defendant made the case that the entry into force of the European Convention on Human Rights Act 2003 (the Act of 2003) required the District Court to impose an evidentiary and fair procedures requirement on a housing authority seeking a warrant for the possession of a dwelling under s. 62 of the Act of 1966. The learned District Judge expressed concern in the case stated that the hearing of the case would represent little more than a " rubber stamp" of the...