Hayes v The Minister for the Environment, Community & Local Government
| Jurisdiction | Ireland |
| Court | Court of Appeal (Ireland) |
| Judge | Ms Justice Baker |
| Judgment Date | 09 March 2020 |
| Neutral Citation | [2020] IECA 54 |
| Docket Number | Appeal No.: 2018/460 |
| Date | 09 March 2020 |
AND
[2020] IECA 54
Baker J.
Costello J.
Donnelly J.
Appeal No.: 2018/460
THE COURT OF APPEAL
Order for possession – Tenancy – Bound to fail – Respondent seeking the dismissal of the appellant’s claim on the grounds that it disclosed no reasonable cause of action or was bound to fail – Whether the plea that the respondent is landlord of the appellant was bound to fail
Facts: Plenary summons issued on 22 April 2016 against the first, second, and third defendants/respondents, the Minister for the Environment, Community and Local Government, Ireland and the Attorney General (the State defendants). The fourth defendant/respondent, Promontoria (Finn) Ltd (Finn), was joined on 19 May 2017 and amended pleadings delivered. The statement of claim sought declarations against the State defendants, inter alia, that ss. 576 and/or 84 of the Residential Tenancies Act 2004 are incompatible with the State’s obligations under Articles 34, 40.1, 40.3, 40.5, 42A and 43 of the Constitution, amount to a failure to make provision in law for the rights of the plaintiff/appellant, Ms Hayes, including her right to respect for her private or family life and/or to have her dwelling protected, and that her right to a remedy safeguarded by Articles 34, 40.1 and 40.3 of the Constitution was infringed by reason of the absence of an effective remedy to enforce and vindicate her statutory and/or constitutional rights or rights under the European Convention of Human Rights (ECHR). A declaration was sought that Irish law is incompatible with the State’s obligations under articles 2, and/or 3, and/or 6, and/or 8, and/or 13, and/or 14 ECHR by its failure to provide in law for the protection of tenants living in homes which have been repossessed by charge holders with tenants in situ. Ms Hayes sought a declaration that Finn, entitled to the benefit of the order for possession made by the Circuit Court on 26 March 2015 as successor in title of Ulster Bank, is to be treated as her landlord within the meaning of s. 5 of the 2004 Act, that she is entitled to a Part 4 statutory tenancy of the dwelling within the meaning of s. 28 of the 2004 Act, and that the statutory protection afforded to the tenant by the Act may be enforced by her against Finn. She sought an order restraining Finn from taking possession of the premises in breach of these asserted rights. She appealed to the Court of Appeal from the order of Allen J of 29 November 2018 following delivery of a written judgment on 9 November 2018, [2018] IEHC 623, which refused the motion of Finn to dismiss the plaintiff’s claim on the grounds it disclosed no reasonable cause of action or was bound to fail. What was at the core of the appeal derived from observations made by the trial judge and certain aspects of his reasoning which counsel for Ms Hayes argued contain findings likely to prejudice the ultimate trial. Two questions fell for consideration in the appeal: whether the plea that Finn is landlord of Ms Hayes was bound to fail, and the associated but different question, whether the issue had been determined by the Circuit Court on the appeal from the Private Residential Tenancies Board.
Held by Baker J that she agreed with the trial judge that the claim as pleaded was bound to fail. She held that the plea that Ms Hayes became tenant to Finn on account of the order of possession was not legally sustainable. She held that Ms Hayes may have a valid and subsisting tenancy and rights derived therefrom against her landlord, and that claim was not bound to fail. She noted that no claim was made against the landlord and he or they were not identified in the pleadings. She shared the view of the trial judge that the appointment, or purported appointment, of a receiver had no effect on the claim, and it was more likely, subject to the express terms of the mortgage or charge, that the receiver was expressly appointed to act as the agent of mortgagor. She held that she would not interfere with the decision of the trial judge in his direction to permit Ms Hayes to amend her pleadings, and that approach was well supported by the authorities.
Baker J held that the appeal would be dismissed.
Appeal dismissed.
This is an appeal from the order of Allen J. of 29 November 2018 following delivery of a written judgment on 9 November 2018, Hayes v. Minister for the Environment, Community and Local Government [2018] IEHC 623, which refused the motion of Promontoria (Finn) Ltd, the fourth defendant/respondent, to dismiss the plaintiff's claim on the grounds it discloses no reasonable cause of action or is bound to fail.
This is an unusual appeal in that as thus stated the appellant (“Ms Hayes”) succeeded in defending the motion before the High Court, and what is at the core of the appeal derives from observations made by the trial judge and certain aspects of his reasoning which counsel for Ms Hayes argues contain findings likely to prejudice the ultimate trial.
Ms Hayes has since 2006 occupied a residential premises at Santry Cross, Ballymun, Dublin 9, Folio 116002L, County Dublin, as tenant to the registered owner (I will refer to him as “the landlord,” although the issue of who is landlord is a central issue in the proceedings. It is unclear whether the wife of the registered owner was formally a landlord although she was a joint borrower). The landlord had purchased the property in 2005 funded by a loan from Ulster Bank Ireland Limited (“Ulster Bank”) secured by way of a charge registered on the folio. The precise date on which the tenancy was created may be in dispute at trial, but for present purposes the relevant facts are that Ms Hayes has been in occupation as tenant since early 2006, she has acquired the benefit of renewal rights under the Residential Tenancies Act 2004 (“the 2004 Act”), and a charge became and remains registered on the interest of the landlord since May 2007.
Promontoria (Finn) Ltd. (“Finn”) purchased the loan and security from Ulster Bank by deed of global transfer made on 29 September 2015 and thereafter it became registered as owner of the charge on 15 October 2015.
The landlord fell into arrears with the loan and on 20 August 2013, before the assurance to Finn, Ulster Bank issued a civil bill for possession in Dublin Circuit Court against him and his wife, a co-borrower but not registered owner. Ms Hayes was not named a party, but the civil bill was served on her in accordance with the Rules of the Circuit Court which require service on all persons in possession. On 26 March 2015 the Circuit Court made an order for possession, with a stay of three months.
Ms Hayes did not attend the hearing of the case in the Circuit Court. At no time has she disputed the validity of the making of that order.
Correspondence was had between the solicitors then acting for Ms Hayes and the solicitors for Ulster Bank who made it clear that whilst adequate notice would be afforded to the tenant before the possession order was enforced, it was not proposed to engage further with Ms Hayes. Rent has not been accepted by either Ulster Bank or Finn since the order for possession.
On 16 June 2015, Ulster Bank wrote to all persons in possession giving notice of its intention to take possession of the dwelling and requesting vacant possession within 112 days. This letter was addressed not to Ms Hayes personally but to an impersonal “tenant”.
Ms Hayes argues that she has been in possession of the dwelling as tenant with the consent of Ulster Bank and that accordingly Ulster Bank became her landlord as a result of the order for possession. On that basis Ms Hayes sought to treat its letter seeking vacant possession as a formal notice of termination and made application to the Private Residential Tenancies Board, as it then was, (“the RTB”) naming Ulster Bank as respondent and in which she claimed that the notice of termination was invalid.
On 22 September 2015, the RTB delivered a determination that it had no jurisdiction to entertain the complaint of Ms Hayes under the Act as it was not satisfied that Ulster Bank was the landlord of Ms Hayes.
That decision was appealed and on 27 October 2015 the RTB notified Ms Hayes of the decision of the Board to uphold the previous determination.
Mrs Hayes brought an appeal to the Circuit Court pursuant to s. 84(5) of the Act naming Ulster Bank as respondent, and Judge Linnane on 25 January 2016 affirmed the decision and held that the decision of RTB to refuse jurisdiction was correct as a matter of law, as Ulster Bank was not the landlord of Ms Hayes. Ms Hayes was represented by solicitor and counsel at the hearing of the Circuit Court and the arguments made in correspondence were advanced and elaborated upon at that hearing. Ulster Bank did not attend the hearing.
That decision was not appealed to the High Court on Circuit or challenged by judicial review. It is therefore a final determination of a competent court.
The plenary summons issued on 22 April 2016 against the State parties only. Finn was joined on 19 May 2017 and amended pleadings delivered.
The statement of claim seeks declarations against the first, second, and third defendants (“the State defendants”), inter alia, that ss. 576 and/or 84 of the 2004 Act are incompatible with the State's obligations under Articles 34, 40.1, 40.3, 40.5, 42A and 43 of the Constitution, amount to a failure to make provision in law for the rights of Ms Hayes, including her right to respect for her private or family life and/or to have her dwelling protected, and that her right to a remedy...
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