McCauley v Her Honour Judge Karen Fergus

• Jurisdiction: Ireland
• Judge: Mr. Justice Eagar
• Judgment Date: 21 December 2015
• Neutral Citation: [2015] IEHC 825
• Court: High Court
• Docket Number: RECORD NO. 2015 383 JR
• Date: 21 December 2015

[2015] IEHC 825

THE HIGH COURT

Eagar J.

RECORD NO. 2015 383 JR

BETWEEN

EAMON McCAULEY AND ANNE CALLAGHAN

APPLICANTS

AND

HER HONOUR JUDGE KAREN FERGUS

RESPONDENT

AND

THE COUNTY COUNCIL OF THE COUNTY OF DONEGAL

NOTICE PARTY

Housing – S. 62 of the Housing Act 1966 – European Convention of Human Rights – Succession of tenancy – Compliance with mandatory provisions

Facts: The applicants sought an order of certiorari for quashing the judgment and order of the respondent affirming the decision of the District Judge awarding an order for possession of a dwelling house to the notice party. The first named applicant claimed that he had a right to occupation of the said dwelling being a successor tenant after the death of his brother to whom the said premises had been leased. The first named applicant contended that the impugned order was in contravention of his right to respect for home under art 8. of the European Convention on Human Rights.

Mr. Justice Eagar refused to grant an order of certiorari to the applicant. The Court held that the remedy of judicial review being a discretionary relief could not be used in cases where the end result would be moot. The Court found that the right to respect for home under the European Convention on Human Rights was not akin to the right to home as claimed by the applicants. The Court held that as the first named applicant failed to comply with the provisions of the allocation scheme, in that, he was not staying at the said dwelling continuously for a two-year period immediately prior to the death of his brother, he could not now claim a right to the said dwelling on any other ground.

JUDGMENT of Mr. Justice Eagar delivered on the 21st day of December, 2015

1 This is an application for an order of certiorari quashing the judgment and order made by the first named respondent of the 25th June, 2015. On that date the respondent affirmed the decision of District Judge Kilraine awarding an order for possession of a dwelling house at Ballintra, Co. Donegal made on the 16th January, 2015. She granted the application made by the notice party.

2 An ex-parte application was made by the applicants on the 6th July, 2015 and Noonan J. granted leave for the applicants to issue a motion and to amend the title of the proceedings to join Donegal County Council as notice party.

3 The affidavit grounding the application had little factual information. The first appellant stated that ‘the house had been in possession of my people since 1970 and the land upon which it was built since 1950’. He conceded that he had a house in Bundoran but due to unhappy differences with his ex-wife and the need to look after his elderly parents and his then ill brother (Liam McCauley) meant that he was frequently in the house. He also stated as follows ‘I believe that in 1970, when the Council built the house, my people were led to believe or were of the belief that the McCauley's could remain in the house, provided the usual conditions were met. An independent assessor might well reject or accept these arguments but in Court I could provide no effective evidence. I also believe that a decision of the Circuit Court Judge infringed Article 6 rights under the Convention.’

4 The statement of opposition of the notice party made the following points:

a. The applicant submitted to the jurisdiction of the District Court and the Circuit Court and acquiesced in that jurisdiction and waived their rights to challenge the orders,

b. The applicants had failed to seek judicial review and in particular the relief of prohibition of the notice parties prosecution. The proceedings either prior to the District Court proceedings or given the nature of s. 62 of the Housing Act 1966 (hereinafter referred to as ‘the Act of 1966’) seeks an order of certiorari of the District Court proceedings,

c. The notice party denied that the property constituted a family home for the applicants and that their Article 8 rights were not engaged

d. Neither applicant gave evidence in the District Court or in the Circuit Court. The respondent Circuit Judge had not failed to allude to the relevant articles of the European Convention of Human Rights.

e. The Allocation Scheme for approved applicants for social housing permits the succession of tenancy in the place of an existing tenant of a rented dwelling but only on the basis that the family member has been in continuous occupation of the dwelling for at least two years prior to the death of the former tenant and that family member's income was taken into account in determining the amount of rent paid.

5 The affidavit of Bridie McBrearty who is the area manager for housing and corporate affairs for the notice party grounded the statement of opposition. She said she was present at the District Court on the 16th January, 2015 and gave evidence on oath in relation to the formal proofs. The applicants were legally represented but there was no challenge to her evidence. Counsel on behalf of the applicants made a number of points to District Judge Kilraine and at the conclusion Judge Kilraine accepted that the Court had no discretion in relation to s. 6 of the Act of 1966 once the proofs were in order. Ms. McBrearty also stated that she was present at the appeal before the respondent and gave formal evidence which included that Donegal County Council was the full owner of the property at Ballintra since the 17th July, 1970. Exhibited to the affidavit of Ms. Brearty was the letting agreement leasing the cottage to Liam McCauley, the brother of the first named applicant and confirming that for the purpose of a differential rent review his income (a disability allowance) was taken into account in relation to the period from June 2000 to...