Keenan v Clare County Council and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Conleth Bradley |
| Judgment Date | 08 November 2023 |
| Neutral Citation | [2023] IEHC 598 |
| Court | High Court |
| Docket Number | 2023 962 JR |
[2023] IEHC 598
2023 962 JR
THE HIGH COURT
JUDICIAL REVIEW
JUDGMENT (ex tempore) of Mr. Justice Conleth Bradley delivered on Wednesday, 8 th November, 2023
The Statement of Grounds in this contested application for leave to apply for judicial review describes the applicant as a young mother who is a member of the Traveller community. The applicant was married in 2013 and together with her husband they put their names on the council's housing list in 2013 – over ten years ago.
The applicant and her five young children, who range from two to nine years of age, live in a caravan as their family home, which is presently parked at the end of a cul-de-sac on the edge of Sixmilebridge, County Clare. The caravan has been located there since in or around August 2023. The applicant states that this is because they have no other home and that they have never had an authorised location upon which to place their caravan.
The applicant describes how, for some time previously, she and other members of her family had located themselves on the edges of the Ring Road around Ennis on disused fields and roads and that during the Covid-19 pandemic, portable toilets and water-drums were provided by the council notwithstanding the unauthorised nature of the siting of the caravans (as per regulations in force during the pandemic).
However, she adds that when the applicant and her family (going back to the time of her grandmother) found ‘out-of-the-way’ places in the hills between Ennis and Limerick, they were ordered to leave because of summonses served by the gardaí, in some instances based on complaints from council officials.
Ultimately, the applicant parked her caravan in the carpark of the Sixmilebridge railway station (albeit that she describes the presence of barriers there which restricted access and egress) and it was while here that her eldest child started school in Sixmilebridge.
It was the removal of her caravan from that location by the gardaí (with the assistance of council officials) which forms the immediate background to these proceedings.
I heard submissions from the applicant, who is a litigant in person (assisted by Ms. Heather Rosen, a McKenzie friend).
Mr. Luán Ó'Braonáin SC made submissions on behalf of Clare County Council (“the council”) and Mr. Joe Jeffers SC made submissions on behalf of the Garda Commissioner, the DPP, Ireland and the Attorney General (“the State”).
While a substantial amount of evidence has been placed before the court, it remains an application for leave to apply for judicial review under Order 84 of the Rules of the Superior Courts, 1986 (as amended) (“RSC 1986”) and the threshold remains that of arguability or stateability.
The applicant first made an ex parte application (in person) to this court (Sanfey J.) on the 18 th August 2023 and the court directed that the council and the Garda Commissioner be put on notice of the application and that the council 1 be restrained until Friday 25 th August 2023 (or until further Order in the meantime) from interfering, encroaching or taking possession of the caravan occupied by the applicant and her children which was in situ at Lios Anama, Sixmilebridge, County Clare. When the matter next came before the court (Stack J.) on the 25 th August 2023, after hearing from the applicant (assisted by Ms. Rosen as a McKenzie Friend) and separately from counsel for the council and counsel for the Garda Commissioner, the court made directions for the service of documentation and continued the restraining order until the 5 th September 2023. On the 31 st August 2023 the court (Phelan J.) extended the time for service of documentation. When the matter came before the court (Egan J.) on the 5 th September 2023, the court granted the applicant's request for an adjournment to the 9 th October 2023, continued the restraining order against the council and the gardaí and made further directions in relation to the service of documents. I understand from the parties that when the matter next came before the court the applicant may have been unavailable and eventually the matter came before the court and was assigned a hearing date for the 31 st October 2023. When the matter was called on at the call-over on the previous Thursday, Hyland J. refused the applicant's application for a further adjournment.
One of the advantages of O.84, r.24(1) of RSC1986 (the rules which provide for ‘leave on notice’) is that the exchange of further affidavits in a contested leave application (from the date of the initial ex parte leave application) can act to sharpen the focus of the issues between the parties. This is what has occurred in this case but, of course, the applicable threshold is the relatively low standard of arguable or stateable grounds. At the hearing before me, the applicant, assisted by Ms. Rosen (as a McKenzie friend), sought an adjournment on the basis of having just received legal submissions and authorities from the council and the State respondents. The council and the State respondents opposed the further adjournment and indicated that they would not rely on the legal authorities furnished to the applicant and Ms. Rosen and that their oral submissions would be based on general principles. I indicated to the applicant that I was refusing the application for a further adjournment.
It may be observed that applications, such as this one, may in the future benefit by the parties consenting to a ‘telescoped hearing’ in the manner envisaged by O.84, r.24(2) RSC 1986 where the court can treat an application for leave as if it were the hearing of an application for judicial review with such ancillary directions addressing the matters set out in O.84, r. 24(2)(i), (ii) (I),(II), (III) and (IV) of the RSC 1986.
The applicant has sworn five affidavits – on the 18 th August 2023, 25 th August 2023, 5 th September 2023, 29 th September 2023 and 15 th October 2023. Mr. John Corry, Administrative Officer with the Housing Department of the council has sworn three affidavits– on the 24 th August 2023, 4 th September 2023 and the 6 th September 2023. Superintendent John Ryan has sworn the main affidavit on behalf of the Garda Commissioner dated the 15 th September 2023 with four shorter affidavits from Sgt. Shane Graham and Garda Colette Acton both sworn on the 15 th September 2023 and from Sgt. Seamus Mulligan and Sgt. Tracey Stanley both sworn on the 18 th September.
Unsurprisingly, the applicant's Statement of Grounds does not conform precisely with O.84 of the RSC 1986. Five main reliefs are sought which in their terms include the grounds relied upon by the applicant. Essentially the first two reliefs are sought against the Garda Commissioner and third and fourth reliefs are sought against the council. I am assuming that the fifth relief – a claim for damages– is sought as against both the council and the State respondents.
In addressing these matters, I now set out the salient facts relative to the reliefs which are sought against each of the principal respondents bearing in mind that this is a leave application.
Paraphrasing the reliefs sought at paragraphs 1 and 2 of the applicant's Statement of Grounds, the applicant effectively seeks (i) an interlocutory injunction against An Garda Síochána (and the council insofar as any council officials may have facilitated or assisted the gardaí) preventing them from removing (i.e. impounding) her caravan, which is her family home, until separate plenary proceedings 2 involving the applicant's mother have been determined, and, (ii) an interim injunction to the same effect pending the determination of the aforesaid interlocutory injunction application. (A similar description of this relief is set out in the first bullet point of paragraph 68 of the applicant's first affidavit sworn on the 18 th August 2023).
The plenary proceedings involving the applicant's mother were described by the applicant as a challenge under the Constitution and the European Convention on Human Rights Act 2003 (as amended) to laws which facilitate the alleged trespass and the alleged impounding of the homes of members of the Traveller community and, specifically, to the then threatened removal of the applicant's mother's caravan from the carpark of Sixmilebridge railway station. According to the affidavit of Superintendent John Ryan (at paragraphs 22–23) which was sworn on the 15 th September, 2023, the applicant's mother subsequently accepted an offer of accommodation in Newmarket on Fergus from Clare County Council and her caravan was removed by agreement from the carpark of Sixmilebridge railway station. Superintendent Ryan further avers (at paragraph 26 of that affidavit) that these proceedings were listed for mention in the Chancery List on the 20 th October 2023. The applicant has a different understanding of these events, stating that her mother had to accept the sole tenancy in this accommodation because of illness and because she could not face another winter without services and described a situation of hardship and deprivation.
Insofar as the applicant seeks to have an order made which would have the effect of joining her to her mother's separate plenary action, such an order cannot be granted in this application for leave to apply for judicial review. It is noted that the application by the applicant's sister and her children to join as co-plaintiffs related to the separate plenary action in Record Number 2021/3205P.
The applicant makes the alternative argument that, regardless (or independent) of the proceedings...
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