McCauley v Her Honour Judge Fergus
| Jurisdiction | Ireland |
| Judge | Mr. Justice Gerard Hogan |
| Judgment Date | 07 February 2018 |
| Neutral Citation | [2018] IECA 30 |
| Date | 07 February 2018 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2018] IECA 30 2016 No. 151 |
[2018] IECA 30
THE COURT OF APPEAL
Hogan J.
Ryan P.
Hogan J.
Whelan J.
Neutral Citation Number: [2018] IECA 30
2016 No. 151
Judicial review – Order for possession – Proportionality – Appellant seeking judicial review in respect of a decision of the respondent – Whether the making of an order for possession in favour of the notice party was wholly disproportionate
Facts: The appellant, Mr McCauley, applied to the High Court for judicial review in respect of a decision of the respondent, Her Honour Judge Fergus, delivered on the 25th June 2015, whereby she granted an order for possession of certain premises at Ballinacarrick, Ballintra, Co. Donegal in favour of the notice party, Donegal County Council, pursuant to s. 62 of the Housing Act 1966. On the 21st December 2015, Eager J dismissed the application. The appellant appealed to the Court of Appeal against that decision. His case was, in essence, that the property in question was his home, at least for the purposes of Article 8 of the European Convention of Human Rights (ECHR). He maintained that due to the summary nature of the procedure provided for by s. 62 of the 1966 Act his rights under Article 8 ECHR were thereby compromised. Specifically, he contended that he was unable to lead evidence to show the nature of his connections with the premises in question, such that the making of an order for possession in favour of the Council was wholly disproportionate.
Held by Hogan J that it could not be said that Judge Fergus erred in the manner in which she construed s. 62(3) of the 1966 Act. While Hogan J understand the appellant’s reluctance to embark upon complex litigation raising either the constitutionality of s. 66 of the 1966 Act or seeking a declaration that such was incompatible with the ECHR pursuant to s. 5 of the 2003 Act, that was, in fact, the substance of what the claim in the proceedings amounted.
Hogan J held that the appeal should be dismissed.
Appeal dismissed.
This is an appeal from the decision of the High Court delivered on the 21st December 2015 whereby Eager J. dismissed the present application for judicial review in respect of a decision of Her Honour Judge Fergus delivered on the 25th June 2015 whereby she granted an order for possession of certain premises at Ballinacarrick, Ballintra, Co. Donegal in favour of the notice party, Donegal County Council (‘the Council’), pursuant to s. 62 of the Housing Act 1966 (‘the 1966 Act’): see McCauley v. Fergus [2015] IEHC 825. The applicant, Mr. McCauley, now appeals to this Court against that decision.
Section 62 of the 1966 Act is a well known provision which provides for a summary method whereby a local authority can recover possession of a tenancy of a dwelling following the commencement of District Court proceedings. Section 66 has, however, been superseded by the provisions of s. 13(8) of the Housing (Miscellaneous Provisions) Act 2014.
The applicant's case is, in essence, that the property in question was his home, at least for the purposes of the Article 8 of the European Convention of Human Rights. He maintains that due to the summary nature of the procedure provided for by s. 62 of the 1966 Act his rights under Article 8 ECHR were thereby compromised. Specifically, he contends that he was unable to lead evidence to show the nature of his connections with the premises in question, such that the making of an order for possession in favour of the Council was wholly disproportionate.
The background facts would appear to be as follows. It seems that the applicant's mother, Mrs. McCauley, previously lived in a dwelling on the site at Ballinacarrick which was in a dilapidated condition. At some stage she agreed to give the Council the land and that in return the Council agreed to build the present dwelling in 1970. The applicant stated on affidavit that he believed 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……’
The applicant thus maintained that he was entitled to possession of the property qua tenant provided that he paid rent.
I should further explain that the applicant had previously owned a house nearby in Bundoran but, following a marital dispute, transferred the property to his daughter. At that stage the tenant of the property at Ballincarrick was his brother, Liam McCauley. He ( i.e., Mr. Liam McAuley) had succeeded his mother (who by this stage had died) as tenant of the property and, indeed, he had been in occupation of the property qua tenant in his own right since 2000. While Mr. Liam McCauley contemplated purchasing the property at some stage in 2006, this application did not proceed.
In December 2012 the applicant then moved into the property to look after his brother who by this stage was seriously ill. Sadly, however, Liam McCauley died on 24th March 2013. The applicant subsequently applied to the Council in September 2013 for housing support, but the Council refused to the application by reference to its Allocation Schemes for tenancies of this nature. In particular, the applicant was refused because although he was a brother of the previous now deceased tenant, the Council was not satisfied that he had been in occupation of the premises for the previous two years and nor had his income been taken into account in calculating the rent payable to the Council.
In March 2014 s. 62 proceedings were commenced in the District Court by the Council seeking possession of the property. An order for possession was granted by the District Court in January 2015. The applicant then appealed to the Circuit Court where, following a very full argument, Her Honour Judge Fergus affirmed the District Court order.
According to the agreed note of the judgment, the Circuit Court judge ruled as follows:
‘The judge said that Article 8 of the European Convention on Human Rights protects the home but does not give a right to a home. The judge said that ECHR dealt with fairness of procedures and she noted that dispute of the appellant was that the property was on family lands and that Mr. McCauley expected to stay in the family home built by the County Council. She noted that Liam could have bought the house in 2006 however he did not do so. Eamon McCauley, the appellant, had not lived in the house since 1990 therefore could not argue that this was an eviction case. Mr. McCauley agrees that he was not in occupation of the family home for a period of two years. Article 8 does not give rights to a home; it protects the home. Social housing was provided for the McCauley family. She confirmed the order of the District Court in both cases.’
In any consideration of the issues raised on this appeal, the first thing to bear in mind is that neither the decision of the District Court nor the Circuit Court could be quashed in judicial review proceedings for a failure to apply the European Convention of Human Rights (‘ECHR’) as such. The ECHR has not been made part of the domestic law of the State for the purposes of Article 29.6 of the Constitution. Nor are the individual provisions of the ECHR directly effective in our domestic law: see McD. v. L. [2009] IESC 81, [2010] 2 I.R. 199.
What the Oireachtas has instead done is to provide for a particular form of sub-constitutional incorporation of the ECHR via the European Convention of Human Rights Act 2003 (‘the 2003 Act’). Three sections of that Act have a direct relevance so far as this issue is concerned. Section 2 of the 2003 Act imposes a duty upon a court in ‘interpreting and applying’ any statutory provision or rule of law:
‘…in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State's obligations under the Convention provisions.’
Section 3 provides that ‘subject to any statutory provision…or rule of law’, every ‘organ of the State’ shall perform ‘its functions in a manner compatible with the State's obligations under the Convention provisions.’ It is important to note, however, that courts performing part of the judicial powers of the State are among the bodies excluded from the definition of ‘organ of the State’ contained in the definition of that term which is found in s. 1(1) of the 2003 Act.
Section 5(1) of the 2003 enables the High Court to grant a declaration of incompatibility subject to certain conditions. Section 5(2) provides that any such declaration shall not ‘affect the validity, continuing operation or enforcement of the statutory provision or rule of law in respect of which it is made.’
If, therefore, the Circuit Court order was invalid, it could only have been by reason of a breach of the provisions of either ss. 2, 3 or 5 of the 2003 Act. It may be convenient first to examine the provisions of s. 3 and s. 5 before returning to the question of s. 2.
It is plain that there could have been no breach of s. 3 in this case by the Circuit Court judge for the simple reason that the courts are excluded from the definition of ‘organ of the State’ contained in s. 1(1) of the 2003 Act. If, of course, the courts were so defined, it would mean that they too would be obliged to give a form of direct effect to the individual provisions of the ECHR and thus treat these provisions as if they were directly applicable law, even though the Oireachtas had never determined that...
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