McConnell and McConnell v Dublin City Council and Others

• Jurisdiction: Ireland
• Judge: MR. JUSTICE T.C. SMYTH,MR. JUSTICE T.C. SMYTH HEARD
• Judgment Date: 28 January 2005
• Neutral Citation: [2005] IEHC 21,[2005] IEHC 7
• Court: High Court
• Date: 28 January 2005

[2005] IEHC 21

THE HIGH COURT

DUBLIN

Record No. 244JR/2003

MCCONNELL v DUBLIN CITY COUNCIL & ORS

BETWEEN/

DAVID McCONNELL and THOMAS (NIKKI) McCONNELL (SUING BY HIS FATHER AND NEXT FRIEND DAVID McCONNELL)

Applicants

-and-

DUBLIN CITY COUNCIL, DISTRICT JUDGE FITZPATRICK (JUDGE OF THE DUBLIN METROPOLITAN DISTRICT COURT), IRELAND AND THE ATTORNEY GENERAL

Respondents

DUBLIN CITY COUNCIL v FENNELL 2005 2 ILRM 288

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

O'CONNELL, STATE v FAWSITT 1986 IR 362 1986 ILRM 639

EUROPEAN HUMAN RIGHTS ACT 2003

PRACTICE AND PROCEDURE

Costs

Applicant of limited resources - Whether case involved matter of public interest - Whether costs should follow event - Order for costs in respect of previous application stayed pending outcome of proceedings - Whether court order to lift stay necessary - Stay lifted and costs awarded to respondent (2003/244 JR - Smyth J - 28/01/2005) [2005] IEHC 21

McConnell v Dublin City Council

It was submitted on behalf of the applicant that he was entitled to the costs of the proceedings on the basis firstly that the case was brought bona fide by him in defence of a family interest, secondly if costs were awarded against him or he was required to bear his own costs it would impose an unwarranted hardship on him and thirdly the application related to a matter of law of public interest which, was required to be determined.

Held by Smyth J. in favour of the respondents: That costs will follow the event in full in the normal way. There was no good and proper reason why costs should not be awarded to the respondents who were successful in resisting the applicant’s application.

Reporter: L.O’S.

1 MR. JUSTICE T.C. SMYTH HEARD ON FRIDAY, 28TH JANUARY 2005

2 I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named action.

APPEARANCES

For the Applicant

MR. F. CALLANAN SC

MR. C. FITZGERALD SC

MS SIOBHAN PHELAN BL

Instructed by:

MR. FRANK MURPHY

Ballymun Community Law Centre

Stormanstown House

Ballymun road

Ballymun, Dublin

For the First Respondent

MR. CONNOLLY, SC

Instructed by:

MS C. O'FARRELL BL

DUBLIN CITY COUNCIL

Civic Offices

Wood Quay

Dublin 8

For the Second Respondent

MR. E. McCULLOUGH, SC

MR. D. GILVARRY, BL

Instructed by:

CHIEF STATE SOLICITOR

3 COPYRIGHT: Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Service

THE HEARING COMMENCED, AS FOLLOWS, ON FRIDAY 28TH JANUARY 2005

4 MR. CONNOLLY: May it please the Court. On behalf of Dublin City Council I ask for my costs, costs to include written submissions. I want to mention that there was an earlier Costs Order of Quirke J. in relation to the late amendment of the Pleadings, which is an Order of 29th November 2004. He made an Order for Costs, but he put a stay on that pending the determination of the action. I don't know whether your Lordship thinks it is appropriate to lift that stay or whether the stay withers by definition because the action has been determined, but I am drawing that to the Court's attention as well.

5 MR. McGARRY: I have a similar application, my Lord, on behalf of the State Respondents in the same terms.

6 MR. CALLANAN: May it please your Lordship. Obviously I have been beaten fair and square on the diverse issues that I raised but nevertheless I am making an application for my costs to your Lordship. Just before I get to that, Mr. Connolly has raised the issue of the order of Quirke J. in which he allowed me make the amendments in relation to the Convention of Human Rights but I would certainly say anomalously awarded the costs of that application against me and I know Mr. Murphy, my solicitor, has been looking to take up that Order and clearly it is been perfected but it has only been perfected in the last couple of days and certainly it is my intention to appeal that order. I don't know how it ought to be dealt with logically. I suppose effectively it is a free standing order. I think it would follow that the stay ceases with the final determination of the matter at hearing before your Lordship. so I am not sure, just as a matter of the logic of the thing, that it necessarily requires a further order, but just so that Mr. Connolly is aware of that. obviously, I did propose to appeal that Order in relation to the costs. The basis, my Lord, of which I say that in what are very exceptional circumstances, the Applicant ought to be awarded his costs in spite of having failed on the case he has made, is that I say in the first case, it was a case that was brought bona fide by Mr. McConnell in defence of a family interest, an interest of the unity of his family and of his family home and that he did so bona fide. I don't think it has been suggested that he did so otherwise than bona fide.

7 I say secondly to award the costs against Mr. McConnell, or to leave him indeed to bear his own costs, would be to impose a hardship which would be unwarranted. obviously he is simply an employee, in fact an ordinary employee, in fact an employee of the City Council itself but obviously a man of limited resources.

8 The third matter that I urge on the Court is that this is a matter of law of public interest which required to be determined. In that regard, the Court will recall there was reference in the course of the case to the case stated in the matter of Dublin City Council -v- Jeanette Fennell, which I referred to and Ms. O'Farrell rightly corrected me for what I said it was about and she handed in, in fact, the text of the case stated. That was a case stated that is in fact now listed for hearing in the Supreme Court on 12th April. The reason I refer to it is that if one goes through the case stated, one can discern the extent to which the City Council acknowledge that the issue in that case is a matter of public interest of which it is desirable to have a determination.

9 Now the issue in that case, and Ms. O'Farrell was absolutely right about that, is that it is a narrow subset of an issue which arose in this case. It was over whether, under Section 62, the District Court or in this case the Circuit Court, Judge Linnane in the Circuit Court, is restricted in relation to the evidence that she can hear as to whether she can entertain evidence of the circumstances which gave rise to the determination of the tenancy by the local authority, by the housing authority in question (in that case also the City Council) or whether she is constrained to material to have the formal proofs established before her. As your Lordship is aware, the case that the Applicant made to your Lordship really is constitutional and in relation to the European Convention of Human Rights was very largely premised on the proposition that the existing view of Section 62 was correct and that both the District Court and the Circuit Court on appeal were limited in the ambit of the matters on which they were required to adjudicate under section 62. I didn't rule out the possibility that one could take a different view of Section 62 but I think on the authorities and on the face of the Section, it appeared hard to argue that the District Court or Circuit Court on appeal had the entitlement to, as it were, go into the merits or the reasoning behind the decision of the particular housing authority to terminate the tenancy. In the consultative case stated itself in Fennell, which is dated 26th November 2004, at paragraph 8 in which the questions on which the opinion of the Supreme Court is sought are set forth.

10 MR. JUSTICE SMYTH: Paragraph?

11 MR. CALLANAN: It is paragraph 8. It is the penultimate page of the case stated. Sorry, I should have brought a copy

12 MR. JUSTICE SMYTH: No, I have it.

13 MR. CALLANAN: It is not easy to locate. Your Lordship will see that there are points of claim and points of reply are appended. There is the text of the case stated itself.

14 MR. JUSTICE SMYTH: This is in the point of reply, is it?

15 MR. CALLANAN: It is in the consultative case stated about five pages in. It is page 5. The Court will see just before the matter…(INTERJECTION)

16 MR. JUSTICE SMYTH: "Counsel on behalf of the Respondent....", yes.

17 MR. CALLANAN: Yes.

"....requested that I refer the questions of law arising on this appeal to the Supreme Court in respect of the European Convention of Human Rights Act 2003 by way of case stated for the determination by the Supreme Court. Having considered the submissions of Counsel for both parties and the significance of the issue raised, I accepted the request that a case be stated to the Supreme Court for its determination on terms that the cost of such case stated be borne by the Respondent and I adjourned the proceedings herein pending the determination of the case stated."

18 Now that obviously is open to the Judge of the Circuit Court stating a consultative case for the Supreme Court to impose, to decide the terms on which he does so and obviously that doesn't in any way inhibit this Court or impose an impediment on this Court in relation to any matter at all, but it is quite clear that that was a case stated at the request of the City Council. It is quite clear that in the justice of the case, there was no great issue, but that it was a matter of public interest and it doesn't appear that, and I don't understand that there was any particular issue on the part of the City Council, that it would be a term of a case stated that the costs would be borne by the City Council because obviously the City Council has a very considerable number of such cases and this is an issue that has...