Moore v Dun Laoghaire Rathdown County Council

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: O'Malley J.,Laffoy J.
• Judgment Date: 13 December 2016
• Neutral Citation: [2016] IESC 70
• Docket Number: [S.C. No. 7 of 2011],[Appeal No: 7/2011]
• Date: 13 December 2016

Between/

Christopher Moore

Applicant

and

Ann Moore

Applicant/Appellant

and

Dun Laoghaire Rathdown County Council

Respondent

[2016] IESC 70

[Appeal No: 7/2011]

THE SUPREME COURT

Judicial review – Eviction – Unlawful warrant – Appellant seeking judicial review – Whether the eviction of the appellant was unlawful

Facts: The applicant, Mr Moore, and the applicant/appellant, Ms Moore, sought judicial review arising out of their eviction from what was their family home. The trial judge (Peart J) accepted that there was no lawful basis for the warrant of possession on foot of which the Sheriff executed an order for possession of the District Court made in proceedings brought by the respondents (Dun Laoghaire Rathdown County Council) against the Moores. For reasons addressed in his judgment?([2010] IEHC 466) the trial judge came to the view that it was, nonetheless, appropriate, in the exercise of what he considered to be his discretion, not to grant any relief by way of judicial review. It was as against that finding that Ms Moore appealed to the Supreme Court.

Held by Clarke J, Laffoy J and O'Malley J that the Court was not satisfied that declining to make any order was within the range of permissible courses of action which were open to the High Court in all the circumstances of this case. In so saying the Court emphasised that it should not be seen, in any way, to be departing from the well-established jurisprudence which suggests that the Court should not interfere with an order made by the High Court which does lie within the range of permissible orders even if it might be that the Court, were it considering the matter afresh, might have chosen a different approach.

Clarke J, Laffoy J and O'Malley J held that the Court would make a declaration to the effect that the eviction of Ms Moore on the 14th May, 2010 was unlawful. The Court also determined that Ms Moore was entitled to damages at the level of principle but put the matter in for further submission on a future date to deal with issues concerning damages.

Appeal allowed.

Joint Judgment of Clarke J. , Laffoy J. and O'Malley J. delivered the 13th December, 2016.

1. Introduction

1.1 This case raises the important issue as to the circumstances in which it might be appropriate for the High Court to decline to grant any relief in favour of a party who has been evicted from their home on foot of an invalid warrant for possession. Each of the members of the Court contributed to the writing of this judgment.

1.2 In these proceedings both the applicant and the applicant/appellant ('collectively the Moores') sought judicial review arising out of their eviction from what was their family home. By the time the proceedings came on appeal to this Court the case was only being pursued by the second named applicant who is the sole appellant ('Ms. Moore'). However, nothing turns on the fact that Ms. Moore is the only remaining claimant.

1.3 Furthermore, it does require to be noted that a range of issues were originally relied on by the Moores for suggesting that their eviction from their family home was unlawful. However, by the time of the hearing of the appeal before this Court, only one issue was pursued. In circumstances which it will be necessary to outline in due course the trial judge (Peart J.) accepted that there was no lawful basis for the warrant of possession on foot of which the Sheriff executed an order for possession of the District Court made in proceedings brought by the respondents ('Dun Laoghaire Rathdown') against the Moores. The reason for the finding of unlawfulness was quite simple. The District Court (Ejectment) Rules 1999 ( S.I. No. 218/1999) amended the District Court Rules in a manner which was operative at the time of the relevant proceedings in the District Court. Those rules amended O. 47, r.14 of the District Court Rules and introduced a new O. 47, r.15. The net effect of those amendments was that a warrant for possession could be issued at any time within six months of the making of an order for possession but, importantly, after six months such a warrant could only be issued after an application to the Court by the plaintiff on notice to the defendant.

1.4 While it will be necessary to address the precise circumstances in which a warrant for possession came to be issued in this case, it is now accepted that the warrant on foot of which the Moores were evicted did issue well outside the six month period referred to in the rules and, importantly, issued without any application on notice as required by O. 47, r.15. It was in those circumstances that the trial judge, quite correctly, accepted that the warrant was unlawful. No cross appeal was, again quite properly, brought by Dun Laoghaire Rathdown against that finding. The uncontested backdrop to this appeal is, therefore, that the Moores, and in particular Ms. Moore, were subjected to an eviction on foot of an unlawful warrant.

1.5 For reasons addressed in his judgment, ( Moore & anor v Dun Laoghaire Rathdown County Council [2010] IEHC 466 (Unreported, High Court, Peart J., 29th November, 2010)) the trial judge came to the view that it was, nonetheless, appropriate, in the exercise of what he considered to be his discretion, not to grant any relief by way of judicial review. It is as against that finding that Ms. Moore appeals to this Court. Only some of the background facts to this case are truly relevant to the narrow issue which now requires to be resolved and the Court, therefore, turns to the relevant facts.

1.6 However, before so doing it should also be noted that the legislative context within which the events of this case occurred has been radically altered by the enactment of the Housing (Miscellaneous Provisions) Act 2014 ('the 2014 Act'). The old procedure for obtaining an order for possession, under s. 62(3) of the Housing Act 1966 ('the 1966 Act'), required only proof of a duly served notice to quit and demand for possession. Part II of the 2014 Act sets out procedures which confer far greater rights on tenants who wish to contest allegations made against them and creates a far more extensive decision-making role for the District Court. If a possession order is now made, it must specify both a commencement date for the period of time during which the housing authority may recover possession and the length of that period (which must be at least two months but not longer than nine months).

2. The Relevant Facts

2.1 The Moores were tenants of Dun Laoghaire Rathdown of a property at 4 Glennatan, Loughlinstown. They had been tenants since 1993. It is fair to say that there was a history of significant rent arrears leading to a series of proceedings in the District Court over the years.

2.2 However, on the 18th December, 2008, Dun Laoghaire Rathdown sought and obtained an order for possession from the District Court sitting in Dun Laoghaire. Subsequently, there was a degree of engagement between the parties and it was not until the earlier part of 2010 that it was sought to obtain a warrant for possession directed to the Sheriff to give effect to the original order for possession of the District Court. As noted earlier, the relevant provisions of the District Court Rules required, in the event that a warrant for possession was sought more than six months after the original order for possession, that there be an application on notice to the tenants concerned. It is accepted that no such application was ever brought.

2.3 As a result of inquiries made by this Court in the course of the hearing of this appeal some further documentation was provided by Dun Laoghaire Rathdown from which it is now possible to infer the sequence of events which led to the ultimate eviction which lies at the heart of these proceedings. It would seem that no written version of the original order for possession was in fact drawn up at the time that order was made. It should be pointed out that this was not at all unusual in that the volume of orders made by the District Court is such that written orders are frequently not made up unless one or other of the parties requires the order or some other purpose leads to the necessity to have a formal written order.

2.4 In any event it would appear that a letter was sent in the name of Edward C. Hughes, the county law agent of Dun Laoghaire Rathdown, to the relevant District Court clerk on the 1st March, 2010. The letter is in very simple terms. It says:-

'Enclosed please find Order and Warrant in above case.

Please note that the first date that this case appeared in the District Court was the 6th November, 2008.

Kindly place the Order and Warrant before the District Court Judge for signature and let this office know when same is ready for collection.'

It would appear that what accompanied that letter were two documents in draft form. The first was a draft of an order whose operative part provided as follows:-

'An Order was made on the 18th day of December, 2008 by one of the Judges for the time being assigned to the said District against the said defendant (sic) to the following effect:-

Order for possession with a Stay of Three Months.'

In addition there was a draft warrant which was in a standard form directed to the Sheriff for the county of Dublin authorising him 'to enter upon and give possession of the said premises...'

2.5 It would seem that these documents came to be signed by a District Judge on the 29th April, 2010 and were returned to Dun Laoghaire Rathdown. In due course the warrant was sent to the Sheriff who executed it in the ordinary way on the 14th May, 2010. It should be pointed out that no criticism of any sort can be directed towards the Sheriff for the events leading to the issues in this case. The Sheriff was presented with what was, on its face, a valid warrant and executed that warrant in the ordinary way.

2.6 It should also be...