Moore and Moore v Dun Laoghaire - Rathdown County Council
| Jurisdiction | Ireland |
| Judge | Mr Justice Michael Peart |
| Judgment Date | 29 November 2010 |
| Neutral Citation | [2010] IEHC 466 |
| Court | High Court |
| Docket Number | 1041 JR/2010 |
| Date | 29 November 2010 |
[2010] IEHC 466
THE HIGH COURT
BETWEEN:
And
HOUSING ACT 1966 S62
LANDLORD & TENANT LAW AMDT ACT (IRL) 1860 S86
RSC O.47 R15
RSC FORM 47.9
HOUSING ACT 1970 S13
HOUSING ACT 1966 S62(4)
MCMAHON v LEAHY 1984 IR 525
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4
EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8
QUINN v ATHLONE TOWN COUNCIL & ORS UNREP HEDIGAN 8.7.2010 2010 IEHC 270
MCCANN v UK 2008 47 EHRR 40
COSTIC v CROATIA ECHR 15.01.2009 APPLICATION NO. 28261/06
RSC O.12 R25
HOUSING ACT 1970 S13(1)
DUBLIN CITY COUNCIL v FENNELL 2005 1 IR 604
RSC O.84 R21
CONSTITUTION ART 41
MCSWIGGAN, REX v JUSTICES OF LONDONDERRY 1905 2 IR 318
ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORPORATION 1984 IR 381
VOZZA (STATE) v O'FLOINN 1957 IR 227
HOUSING ACT 1966 S62(3)
HOUSING ACT 1966 S62(4)
RSC O.47 R14
RSC O.47 R15
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2
HOUSING
Eviction
Warrant for possession -Order for possession -Warrant issued more than six months after making of order for possession -Warrant not in prescribed form - Warrant invalid - Whether eviction unlawful- Whether quashing warrant would achieve useful purpose - Rent arrears - The King (M'Swiggan) v Justices of County Londonderry [1905] 2 IR 318 and McCann v UK (2008) 47 EHRR 40 applied; McMahon v Leahy [1984] IR 525; Quinn v Athlone Town Council [2010] IEHC 270, (Unrep, Hedigan J, 8/7/2010); Coisc v Croatia (Application No 28261/06) ECHR, 15/1/2009; Dublin City Council v Fennell [2005] 1 IR 604; The State (Abenglen Properties Ltd) v Dublin Corporation [1984] IR 381 and The State (Vozza) v O'Floinn [1957] IR 227 considered - Housing Act 1966 (No 21), s 62 - Housing Act 1970 (No 18), s 13 - Landlord and Tenant Law Amendment (Ireland) Act 1860 (23 & 24 Vic, c 154), s 86 - European Convention on Human Rights Act 2003 (No 20), ss 2 and 4- Constitution of Ireland 1937, art 41 - European Convention on Human Rights, article 8 - Rules of the Superior Courts 1986 (SI 15/1986), Os 47 and 84 - Certiorari refused (2010/1041 JR - Peart J - 29/11/2010) [2010] IEHC 466
Moore v Dun Laoghaire Rathdown County Council
Facts The applicants had been tenants of the respondent local authority. A dispute had arisen relating to arrears of rent which eventually culminated in the eviction of the applicants. The applicants brought judicial review proceedings seeking an order of certiorari quashing the warrant for possession, a declaration that the eviction in question was unlawful, a mandatory injunction directing the respondent to restore the applicants to possession of the premises, and damages for breach of their constitutional right to the inviolability of their dwelling. It was contended that the warrant for possession was not in accordance with the relevant rules (District Court (Ejectment) Rules, 1999), had been issued outside the relevant time limit and that no order had been sought extending the time for issuing outside that period. Of issue was whether the Sheriff was obliged to wait for at least one month to pass before evicting the applicants according to the relevant rules. The applicants maintained that had the respondent brought the correct application to the District Court for an extension of time to issue a warrant for possession, they would have had an opportunity to make submissions to the District Court and explain their circumstances. On behalf of the respondent it was contended that even if no such application had been made regarding the extension of time, the court should look to surrounding circumstances, such as the history of non-payment of rent, the efforts made by the council prior to eviction to reach agreement with the applicants and the fact that the applicants could point to no real prejudice resulting from any of these features of the case. Regard should also be had to the responsibility which the council had to manage its public housing stock in an efficient and fair way in the interests not just of the applicants but in the interests of all members of the public within its functional area. The court should not act in vain in quashing a warrant for possession which had already been executed. To do so, the court would be facilitating an unlawful occupation of the premises, in view of the fact that the applicants??? tenancy had been lawfully determined by the notice to quit, and they had no right to be there any longer.
Held by Peart J in refusing relief sought. The warrant in question had complied with the statutory provision (section 86 of Deasy's Act, as amended by section 13 of the Housing Act, 1970) and it was the relevant form (form 47.9) which contained incorrect wording. Consideration should be given by the District Court Rules Committee to amend same so that it would be in accordance with the statutory provision. Possession had been obtained some 15 minutes earlier than the earliest time permitted by section 86 of Deasy???s Act, (eight in the morning) but in all the circumstances could be considered to be a de minimis departure from the statute. It could not be disputed that the eviction warrant was not one which was issued in accordance with law. The respondent, having obtained an order for possession, engaged with the applicants in the hope that some appropriate arrangement could be made in respect of the arrears of rent, and it was only after these engagements failed that the council decided to move in relation to a warrant and the obtaining of possession. Regard could be had to the fact that quashing the warrant now would achieve no useful purpose since it has already been executed. At the time that they were evicted, the applicants and for a long time prior to that event, owed a considerable amount in respect of arrears of rent, and they had failed to address that issue in any timely or satisfactory way. There was no conscious and deliberate breach of the applicants??? rights, as was clearly demonstrated by the manner in which the council continued to deal with the applicants after the order for possession was made and no mala fides was demonstrated in any way. Given the circumstances generally both before and since the making of the order for possession, and the conduct of both parties to these proceedings, refusing to grant the reliefs sought would not be disproportionate and the court in its discretion would refuse the reliefs being sought by the applicants.
Reporter: R.F.
Mr Justice Michael Peart delivered on the 29th day of November 2010:
The applicants and family, being tenants of the respondent since December 1993, were evicted from their family home by the respondent on foot of a Warrant for Possession dated 29 th April 2010, which issued following the granting of an Order for Possession by the District Court at Dun Laoghaire on the 18 th December 2008. The premises in question are situated at 4, Gleanntan, Loughlinstown, Co. Dublin (hereinafter referred to as "the premises").
In these proceedings the applicants seek an order of certiorari quashing the said warrant for possession, a declaration that the eviction which was carried out by the Sheriff on the 14 th May 2010 was unlawful, a mandatory injunction directing the respondent to restore the applicants to possession of the premises, as well as damages for breach of their constitutional right to the inviolability of their dwelling. The grounds for impugning the validity of the warrant for possession are stated to be that it is not in the form provided for in the District Court (Ejectment) Rules, 1999 ("the Rules") and in particular Form 47.9 thereof; it was not issued, as required, namely within six months from the date of the Order for Possession, namely, 18 th December 2008, there being no order extending the time for issuing outside that period; and further that the warrant was executed within one month from the date of its issue contrary to the Rules, and was executed at a time of the day not authorised by section 62 of the Housing Act, 1966 and section 86 of Deasy's Act. I will address the parties' submissions in relation to these matters in due course.
There is of course a history of dealings and interactions between the applicants and the respondent which is relevant to the reliefs being sought and I will set that out. But essentially it is the case that for a considerable number of years the applicants failed to discharge the rent as it fell due, and in spite of efforts from time to time to reduce the arrears and pay the rent as due following discussions and agreements with the respondent in that regard, arrears continued to accrue, leading to steps being taken by the respondent by the institution of ejectment proceedings in order to recover possession, culminating in the Order for Possession and eventual eviction pursuant to the warrant for possession which is the subject of the within proceedings.
Two affidavits have been filed by the second named applicant, the second being in response to a replying affidavit sworn by Marie Cronin, an administrative officer in the respondent council. The second named applicant has sworn her affidavits on her own behalf as well as on behalf of the first named respondent.
From these affidavits the following seems to have occurred.
The applicants moved into the premises in December 1993 as tenants of the council having previously occupied a different premises in Sallynoggin since about 1985, also as tenants of the council. They have now three children aged 24, 22 and 17 respectively who resided in the premises up to the date of eviction. It would appear that apart from a brief period of separation when the first named applicant moved to England, the entire...
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Moore v Dun Laoghaire Rathdown County Council
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