Gifford and Gifford v Dublin City Council

• Jurisdiction: Ireland
• Judge: Mr. Justice T.C. Smyth
• Judgment Date: 20 November 2007
• Neutral Citation: [2007] IEHC 387
• Docket Number: [No. 7212 P/2007]
• Court: High Court
• Date: 20 November 2007

[2007] IEHC 387

THE HIGH COURT

[No. 7212 P/2007]

Gifford v Dublin City Council

BETWEEN

DENIS GIFFORD AND SHEILA GIFFORD

PLAINTIFFS

AND

DUBLIN CITY COUNCIL

DEFENDANTS

HOUSING ACT 1966 S62

HOUSING ACT 1970 S13

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 ART 14

CAMPUS OIL v MIN FOR INDUSTRY (NO 2) 1983 IR 88

FOLEY v SUNDAY NEWSPAPERS LTD 2005 1 IR 88 2005 26 5290 2005 IEHC 14

O'DONNELL v DUN LAOGHAIRE CORPORATION (No2) 1991 ILRM 301

RSC O.84 r21

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT S5

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT S5(4)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT S5(5)

O'ROURKE, STATE v KELLY 1983 IR 58

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

DUBLIN CITY COUNCIL v FENNELL & ORS 2005 1 IR 604

INJUNCTIONS

Interlocutory

Housing - Warrant for possession - Declaration that statutory provision incompatible with State's obligation under European Convention on Human Rights sought - Injunction sought to restrain enforcement pending hearing - Applicable principles - Serious question - Inadequacy of damages - Balance of convenience - Special factors - Delay - Whether good reasons for extending time - Whether reasons explaining delay and affording justifiable excuse - Jurisdiction to grant declaration of incompatibility - Appropriate remedy - Constitutionality of relevant statutory provision - Futility of relief sought - Campus Oil v Minister for Industry and Energy (No 2) [1983] IR 88 applied - Foley v Sunday Newspapers [2005] IEHC 14, [2005] 1 IR 88; O'Donnell v Dun Laoghaire Corporation [1991] ILRM 301; State (O'Rourke) v Kelly [1983] IR 58; Dublin Corporation v Hamilton [1999] 2 IR 486 and Dublin City Council v Fennell [2005] IESC 33, [2005] 1 IR 604 considered - Housing Act 1966 (No 21), s 62 - European Convention on Human Rights Act 2003 (No 20), s 5 - European Convention on Human Rights, articles 6, 8, 13 and 14 - Rules of the Superior Courts 1986 (SI 15/1986), O 84, r 21 - Application refused (2007/7212P - Smyth J - 20/11/2007) [2007] IEHC 387

Gifford v Dublin City Council

Mr. Justice T.C. Smyth

1 The Plaintiff seeks an interlocutory injunction restraining the Defendant, its servants or agents from taking any steps to enforce the warrant for possession of 36 Sean O'Casey Avenue in Summerhill, Dublin of the Dublin District Court on the 28th June 2007.

2 The facts giving rise to this litigation may be briefly stated:

3 a) The Defendant ('the Council') let the dwelling house at 36 Sean O'Casey Avenue, Summerhill in the City of Dublin ('the premises') to the Plaintiffs under a Tenancy Agreement of 7th May 1986; the tenancy granted was a joint tenancy from week to week.

4 b) The Plaintiff's tenancy was terminated by a Notice to Quit and demand for possession dated 30th January 2007 which took effect on 12th March 2007. The Plaintiffs failed to comply with the Council's demand for possession.

5 c) On 20th March 2007 the Council issued a summons pursuant to Section 62 of the Housing Act1966as amended by Section 13 of the Housing Act 1970(hereinafter referred to as Section 62) in the District Court to recover possession of the premises. On 28th June 2007 the District Court granted the Council a warrant for possession of the dwelling and imposed a stay of execution thereon for a period of three months, which period has now expired.

6 Before considering the application for injunctive relief the following points may be noted:-

7 1. The Plaintiff did not appeal the order of the District Court of 28th June 2007.

8 2. The Plaintiffs have not challenged the legality of the Council's decision to terminate their tenancy in the dwelling house (premises) by way of application for judicial review.

9 The proceedings as formulated essentially seek declaratory relief [but until the hearing to determine such, seek an interlocutory injunction] that:-

10 I Section 62 of the Housing Act1966(as amended) is incompatible with the obligations of the State under Articles 6, 8, 13 and 14 of the European Convention on Human Rights.

11 II The Defendant ('the Council') has failed to perform its functions in a manner compatible with the State's obligations under Articles 6, 8, 13 and 14 of the European Convention of Human Rights.

12 It was common case the principles applicable to the instant application are those set out inCampus Oil v. Minister for Industry and Energy (No. 2) [1983] IR 88 to wit:-

13 (a) The existence of a serious question to be tried.

(b) The inadequacy of damages, and;

14 (c) That the balance of convenience lies in favour of the grant of the injunction.

15 InFoley v. Sunday Newspapers [2005] 1 IR 88 it was held that in addition to the foregoing, other special factors may have to be taken...