Fitzpatrick v Residential Tenancies Board

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 25 May 2023
• Neutral Citation: [2023] IEHC 285
• Court: High Court
• Docket Number: 2022 No. 206 MCA

Between

Regina Fitzpatrick

Appellant

and

Residential Tenancies Board

Respondent

Sinéad Brett

Notice Party

[2023] IEHC 285

2022 No. 206 MCA

THE HIGH COURT

Appearances

The Appellant failed to attend

Úna Cassidy for the Residential Tenancies Board instructed by Byrne Wallace

Eoin O'Donnell for the Notice Party instructed by Sheehan & Co

JUDGMENT of Mr. Justice Garrett Simons delivered ex tempore on 25 May 2023

1 This is my ruling in respect of legal costs. This matter came before the High Court by way of a statutory appeal pursuant to Section 123 of the Residential Tenancies Act 2004. The procedure governing such an appeal requires that the Residential Tenancies Board be the respondent to the appeal. Other interested parties, such as in this case, the landlord, are joined as notice parties to the appeal proceedings. As such they have a right to participate in the appeal proceedings but as explained presently their claim to recover legal costs will be less than that of the respondent.

2 This appeal was dealt with in a written judgment delivered on 12 May 2023, Fitzpatrick v. Residential Tenancies Board [2023] IEHC 229. The appeal was dismissed on all grounds. The case was an unusual one in that the appellant did not appear before the court to prosecute the appeal. She had made an application through a friend for an adjournment, but that adjournment was refused and the reasons for refusing the adjournment are set out in the written judgment of the court.

3 The appeal was heard in any event de bene esse in circumstances where the appellant is a litigant in person and the court was anxious to ensure that anything that could be said in favour of her appeal would be considered by the court. Ultimately, however, the appeal was unsuccessful on all grounds and the appeal was dismissed.

4 The Residential Tenancies Board has made an application for its costs and in so doing has cited the provisions of Section 169 of the Legal Services Regulation Act 2015. That section provides, in brief, that the default position is that a party who has been “ entirely successful” in proceedings is ordinarily entitled to their costs against the other party. That is the default position only. The court has an overriding discretion and the factors to be taken into account in the exercise of the discretion are set out at Section 169 of the Legal Services Regulation Act 2015. These factors have been considered in a number of judgments including, in particular, the judgment of the Court of Appeal in Lee v. Revenue Commissioners [2021] IECA 114. The relevant passage from Lee has been set out in the written submissions submitted on behalf of the Residential Tenancies Board.

5 It seems to me that the Residential Tenancies Board has made out an entitlement to its costs. The appellant has not, as I say, participated in the appeal at all and has chosen not to participate in this costs hearing. Therefore, there has been no engagement by the appellant with any of the factors which might justify the court in departing from the default position and making either no order for costs or perhaps even an order for costs in favour of the appellant.

6 There is nothing in the procedural history of the appeal which indicates that the court should depart from the default position. This case does not, for example, raise a point of law of general public importance. Nor was there any conduct on the part of the Residential Tenancies Board which would call for criticism by the court and which might be condemned by way of an adverse costs order. Rather, the Residential Tenancies Board's position was upheld in full, and the conduct of the proceedings was...