Leonard v Dublin City Council and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne,Mr Michael Peart
• Judgment Date: 31 March 2008
• Neutral Citation: [2007] IEHC 404
• Court: High Court
• Docket Number: [No. 916 J.R./2007],Record Number: No. 916 JR/2007
• Date: 31 March 2008

Leonard v Dublin City Council & Ors

Between:

Vicky Leonard

Applicant

And

Dublin City Council, Ireland and The Attorney General

Respondents

[2007] IEHC 404

Record Number: No. 916 JR/2007

THE HIGH COURT

JUDICIAL REVIEW

Leave

Set aside - Housing - Leave to challenge constitutionality of section of Housing Act - Leave to seek declaration of non-compliance with principles of justice - Application to set aside leave - Inherent jurisdiction - Applicable principles - Local authority - Breach of tenancy agreement - Warrant for possession before District Court - Refusal of application for adjournment to seek legal representation - Whether arguable case - Previous relevant decisions not referred to in leave application - Nature of right to legal representation - Obligation to make order where proofs in order - Proofs not disputed - Adam v Minister for Justice [2001] 3 IR 53 applied; State (Litzouw) v DJ Johnson [1981] ILRM 273 distinguished; State (O'Rourke) v Kelly [1983] IR 58, Dublin Corporation v Hamilton [1999] 2 IR 486, McConnell v Dublin City Council [2005] IEHC 21, (Unrep, Smyth J, 18/1/2005) and Connors v United Kingdom (2004) 40 EHRR 189 considered - Housing Act 1966 (No 21), s 62 -Leave set aside (2007/916JR - Peart J - 3/12/2007) [2007] IEHC 404

Leonard v Dublin City Council

ADAM & IORDACHE v MIN JUSTICE 2001 3 IR 53

HOUSING ACT 1966 S62

LITZOUW, STATE v JOHNSON & DUBLIN CORPORATION 1981 ILRM 273

O'ROURKE, STATE v KELLY 1983 IR 58

HOUSING ACT 1966 S62(3)

CONSTITUTION

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

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

MCCONNELL v DUBLIN CITY COUNCIL UNREP QUIRKE 18.1.2005 2005/49/10297 2005 IEHC 6

CONNORS v UNITED KINGDOM TLR 10.6.2004

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

Judgment of

Mr Michael Peart

1 Following the granting of leave to the applicant by order dated 23rd July 2007 to seek certain reliefs by way of judicial review, the respondents issued a Notice of Motion dated 27th July 2007 in which they sought to have that order set aside in its entirety, and/or in the alternative an order lifting the stay which the Court granted in respect of the District Court decision of the 15th February 2007 to issue a warrant for possession against the applicant in respect of the dwelling occupied by her at 17, Robert Emmet Walk, Bridgefoot Street, Dublin 8, and the stay granted in respect of the hearing by the Circuit Court of the applicant's appeal against that decision. Having heard the application, the Court gave its decision on an ex tempore basis, and stated that it would deliver a written judgment as to its reasons at a later stage, and now does so.

2 At the outset I should state that I am satisfied that this application comes within the jurisdiction of the Court to set aside leave which has been granted on an ex parte basis, as discussed inAdam and Iordache v. The Minister for Justice, Equality and Law Reform [2001] 3 IR 53. The Court's inherent jurisdiction to set aside such orders was clearly recognised in an appropriate case, even a case such as the present one where there is no question of mala fides in the manner in which the ex parte order was applied for. The jurisdiction should be used sparingly but exists where, having heard the party affected by the ex parte order, the Court is satisfied that the applicant's proceedings have disclosed, inter alia, no reasonable cause of action and is doomed to fail. In the present case on the present application, the respondents during argument have brought to the attention of the Court a number of decisions of both the High Court and Supreme Court which speak to the question as to whether the applicant's case is stateable or reasonably arguable. That is sufficient in my view to bring the application to set aside within the principles emerging from the Adam and Iordache case referred to. This jurisdiction ought not to be confined to cases where facts not made known by the applicant on the ex parte application are made known on the application to set aside. It is equally applicable where the Court was not referred on the ex parte application to relevant case law touching upon the points being put forward as arguable at leave stage.

3 The order of the District Court which has given rise to the present proceedings was made pursuant to the provisions of s. 62 of the Housing Act,1966 (as amended), in circumstances where the respondent Council had made a decision to serve Notice to Quit on the applicant because of what they contend is a breach by her of the terms of her tenancy agreement with the Council dated 30th November 2005 which provided at Clause 13(a):

"Neither the tenant nor any member of his household or any sub-tenant or visitor shall cause any nuisance, annoyance or disturbance to any neighbours, their children or visitors or to council staff",

4 and at Clause 13(vii):

"The tenant must not, at any time, invite or allow to remain on any part of the dwelling or garden, any persons in respect of whom the Council has notified the tenant that they should not enter or remain on the property."

5 By letter dated 29th November 2005 the Council had notified the applicant that it was invoking Clause 13(vii) of the Agreement in respect of a person named as Mark Keating, the applicant's partner, and warned her that if that person was found to be in her premises or to have been in her premises, the Council would be entitled to recover possession under the provisions of s. 62 of the said Act. He, according to her grounding affidavit, is a person with whom she has been in a relationship for a number of years, and who she states is a heroin addict, and she has exhibited some medical information which suggests that she also has an addiction problem of the same nature and that each of them is seeking help in that regard.

6 It appears also that when the applicant had been a tenant of the Council in a different dwelling prior to the 30th November 2005, there had been a complaint about this person being in her premises or of illegal substances being found there following a search carried out by members of An Garda Siochana on the 23rd/24th December 2004.

7 Following the service of the Notice to Quit the applicant failed to give up possession, hence the application by the Council to the District Court under s. 62 of the Act for a warrant of possession.

8 I should add perhaps at this stage that there had been several meetings arranged between the applicant and the Council prior to the decision to serve Notice to Quit being made.

9 There is no challenge made by the applicant to the validity of the decision by the Council to issue a Notice to Quit against her, which is a pre-requisite to the service of the Notice to Quit, and nor is there a challenge to the Notice to Quit itself as served. Those are important factors in this case. The challenge is in the first place to the constitutionality of s. 62 of the Act, as well as to its conformity with certain provisions of the European Convention on Human Rights. Secondly, a declaration is sought that the determination by the District Court which led to the issuing of the warrant for possession to the Council is invalid by virtue of non-compliance with the principles of constitutional and natural justice or by reason of the unconstitutionality of s. 62 of the Act.

10 In her grounding affidavit the applicant averred that while for some time prior to her appearance in the District Court when that order was made she had the services of a solicitor, she was unable to engage a solicitor on the 15th February 2007. She states that when the case was called in the District Court on that occasion she applied for an adjournment to enable her to seek alternative legal representation but that this was refused by the District Judge upon objection by the Council being made. She states that thereafter the Council gave its evidence of the various matters upon which the Court had to be satisfied before making the order of possession. She complains that this all happened very quickly and that she did not follow or understand what was happening. In any event, she found out that the order had been made and on the 28th February 2007 she filed a Notice of Appeal to the Circuit Court. She has subsequently obtained legal advice and assistance from a Law Centre and is apparently in receipt of a certificate from the Legal Aid Board for the purpose of mounting her challenge on the basis that s. 62 contravenes this State's obligations under the European Convention on Human Rights.

11 As I have stated, this Court granted leave to the applicant to seek the reliefs set forth in her Statement of Grounds, and granted a stay on the warrant of possession and on the hearing of the applicant's appeal to the Circuit Court. Upon being served with the application papers, the respondent has sought to have those stays lifted and to have leave set aside, principally on the ground that the constitutionality of s. 62 of the Act has already been upheld, and that it is no longer arguable that the section is unconstitutional. In addition, in so far as the European Convention on Human Rights is called in aid, the respondent submits that even if the Court was to grant leave to seek the declarations sought in that regard, this would not itself justify the granting of any stay on the warrant of possession, since any remedy achieved by the applicant, if ultimately successful at the substantive hearing could result only in an award of damages.

12 The Grounds upon which the applicant seeks the reliefs set forth in her Statement of Grounds include the fact that the Council served her with a summons returnable for the 15th February 2007 and that this summons commanded her to appear at the District Court on that date and"show cause why a...