Mongans v Clare County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Eagar
• Judgment Date: 27 October 2017
• Neutral Citation: [2017] IEHC 709
• Docket Number: [2016 No. 955 J.R.]
• Court: High Court
• Date: 27 October 2017

[2017] IEHC 709

THE HIGH COURT

JUDICAL REVIEW

Eagar J.

[2016 No. 955 J.R.]

BETWEEN

DAVID MONGANS, MARGARET LISA MONGANS

AND

MARGARET LISA MONGANS AS MOTHER AND NEXT FRIEND OF DAVID MONGANS (A MINOR), MICHAEL JAMES MONGANS (A MINOR)

AND

MARTIN MORGANS (A MINOR)

APPLICANTS

AND

CLARE COUNTY COUNCIL

RESPONDENT

Practice & Procedure – Housing Act 1988 – Traveller's accommodation – Issue of ethnicity – Bias – Amendment of statement of grounds – Good and sufficient cause

Facts: The applicants sought an order for amendments to statement of grounds for including additional reliefs on the basis that those were essential for grounding their application for judicial review. The applicants had originally challenged the decision of the respondent to refuse them accommodation. The applicants argued that they were seeking amended reliefs based on An Taoiseach's Declaration of Ethnicity.

Mr. Justice Eagar refused to grant the desired relief to the applicants. The Court held that the statement made by the Member of Parliament had no legal effect and the Court was not bound by that. The Court noted that the applicants had not demonstrated good and sufficient cause for seeking the desired order. The Court opined that the amendments, if allowed, would have changed the nature of the case as originally pleaded.

JUDGMENT of Mr. Justice Eagar delivered on the 27th day of October, 2017

1 The applicants in this case took judicial review proceedings by ex parte application before Humphreys J. on the 19th day of December, 2016. In summary the reliefs sought were:-

(1) An order of mandamus directing the respondent to provide for the applicants' accommodation which comprises with the guidelines for the provision of accommodation for travellers under the Travellers Accommodation Program 2014 to 2018 as adopted by the respondent.

(2) An order of mandamus by way of an application for judicial review directing the respondent to implement and/or comply with the provisions of s. 2 and/or s. 9 and/or s. 10 and/or s. 13 of the Housing Act 1988 (as amended).

(3) A declaration that the applicants require accommodation to be provided from the local authority and are living in accommodation which was not suitable for their needs (medical or otherwise) and are homeless in all the circumstances and are unable to obtain suitable alternative accommodation.

(4) An order of mandamus directing the respondent to implement and comply with the provisions of ss. 6, 7, 10, 16, 19, 23 and/or 24 of the Housing (Traveller Accommodation) Act 1998 as amended.

(5) A declaration of the applicants to require assessment and/or accommodation to be provided from the local authority and further a living accommodation which is not suitable for their needs (medical or otherwise) and/or are homeless in all the circumstances and are unable to obtain suitable alternative accommodation.

(6) An order of mandamus directing the respondent to carry out an assessment of the need for the provisions by the respondent of adequate and suitable housing accommodation for the applicants.

(7) A declaration that the respondent has failed to provide suitable and/or adequate accommodation for the applicants and/or has failed to assess their need in accordance with statute.

(8) An order of mandamus directing the respondent to implement and/or comply with the provisions of s. 10, 11, 12, 14, 19, 20, 21, 22, 37 and/or s. 28 of the Housing (Miscellaneous Provisions) Act 2009 as amended.

(9) A declaration that the applicants for the purposes of the Housing (Miscellaneous Provisions) Act 2009 as amended their assessment and/or accommodation to be provided from the local authority and are living in accommodation which is not suitable for their needs (medical or otherwise) and/or are homeless in all the circumstances and unable to obtain suitable alternative accommodation.

(10) An injunction directing the respondent to take such measures as are necessary directing the respondent to provide suitable accommodation for the applications.

(11) A declaration that insofar as the respondents Traveller Accommodation Programme fails to consider properly the needs of the applicants is deficient and in breach of s. 6, 7 and 10 of the Housing (Traveller Accommodation) Act 1998.

(12) A declaration that the respondent has failed in its duty as a local authority in housing authority to provide the applicants with proper and/or adequate and/or appropriate accommodation.

(13) A declaration that insofar as the respondent's development plan fails to provide or meaningfully so to provide for accommodation to meet the needs of the applicants, it is deficient and in breach of statutory author.

(14) A declaration that the respondent is in breach of the applicants' fundamental rights in respect of their home and/or family life under Article 3 and/or Article 8 and/or Article 14 of the European Convention on Human Rights.

(15) A declaration the respondent is in breach of the applicants' constitutional right to bodily integrity, atomony and/or privacy.

2 The notice of motion for judicial review appeared in the list on the 24th of January 2017 and the statement of opposition of Clare County Council the respondent was dated the 18th of March, 2017. The affidavit grounding the statement of opposition was the affidavit of Sean Lenihan, Acting Senior Executive Officer of the respondent sworn the 13th of March, 2017. As part of the notice of opposition he stated at para. 11:-

‘I say and advise that the following malicious fire to the accommodation occupied by the applicants at 1 Knockanean, Tulla Road, Ennis, Co. Clare on the 31st May, 2015 while the respondent was advised by Ms. Deirdre O'Grady, property underwriter with Irish Public Bodies Insurance that until further notice, any loss or damage caused by fire that is malicious in origin is excluded from any and all Clare County Council social housing units occupied by the first named applicant. This applies to Units the first named applicant maybe temporary upon the residing act. He further says that ‘further enquiries have been made of the Irish Public Bodies and the respondent is advised that any accommodation occupied by the first named applicant is an uninsurable risk and accordingly in providing accommodation to the first named applicant the risk of potential loss or damage caused by fire that is malicious in origin is a risk that has to be borne by the respondent without the comfort of having insurance in place.’

3 There was a joint replying affidavit of David and Margaret Lisa Mongans was sworn on the 19th of May, 2017 stating that any contention that they knew or were involved in a fire started maliciously are rejected and without basis of foundation and outrageous in the extreme.

4 By way of notice of motion dated the 20th of June, 2017 the applicants indicated that they would apply to this Court for:-

(a) An order pursuant to O. 84, r. 23(2) of the Rules of the Superior Courts allowing the applicants to rely upon the additional relieves and additional grounds of relief in the amended statement required to ground application for judicial review included in this application.

(b) An order pursuant to the inherent jurisdiction of the court allowing the applicants to rely upon the amended reliefs and amended grounds of relief set forth in the amended statement required to ground application for judicial review.

(c) If necessary an order allowing the applicants to rely upon the further affidavit sworn by and on their behalf following the service of the respondent's statement of opposition and the application was granted.

5 The notice of motion was grounded on the affidavit of Andrew Darcy, solicitor sworn on the 12th of June, 2017 wherein he says that he acted as solicitor for the applicants the traveller family at all times in the proceedings and he makes this affidavit on behalf of the applicants in these proceedings and he refers to the papers already lodged with the court. He states that the affidavit was sworn for the purpose of grounding an application for leave to deliver an amended statement required to ground application for judicial review. He refers to a draft amended statement of grounds and indicates that the draft pleading in the underlined print describes the additional relief and additional grounds of reliefs sought. He says that he is advised that each of the additional reliefs and additional grounds are relevant to the application for various housing reliefs sought by the applicants. They also relate to the reliefs sought by way of application for judicial review arising from the housing needs of the applicants in the context of the statutory matrix that now applies to members of the traveller community.

6 He says that since the issue and service of the proceedings and coinciding with the respondent's letter requesting an unprecedented indemnity from the applicants, the State through the Statement for Recognition of the Traveller Community as an Ethnic Group dated the 1st of March, 2017 delivered by the An Taoiseach in Dáil Éireann was promulgated. This declaration of ethnicity is relied upon by the applicants for reliefs already claimed and for the additional reliefs and grounds of reliefs sought in this application. The Statement of Recognition of the Traveller Community as an Ethnic Group further supports the applicants' application for local authority housing in the within proceedings under the Housing Act 1966 to 2015 and the respondent's Traveller Accommodation Programme 2014 to 2018. He says that the defence by way of opposition of the council. He refers to a request for a form of indemnity for the applicants to hold the respondents blameless in the event of any fire occurring in any premises occupied by David Mongans, the first named applicant.

7 He also referred to the provisions of Council Directive 2000/43/EC...