Olugbenga Dada and Grace Dada v Residential Tenancies Board

• Jurisdiction: Ireland
• Judge: MR. JUSTICE McDONALD
• Judgment Date: 19 June 2018
• Neutral Citation: [2018] IEHC 378
• Court: High Court
• Docket Number: Record No. 2017/327SP
• Date: 19 June 2018

To the Matter of: The Residential Tenancies Acts 2004 - 2009 and Tribunal Reference TR0317 - 002240

OLUGBENGA DADA

AND

GRACE DADA

Plaintiffs

- and -

RESIDENTIAL TENANCIES BOARD

Defendant

[2018] IEHC 378

Record No. 2017/327SP

THE HIGH COURT

Points of law – Out of time – Extension of time – Plaintiffs seeking to bring an appeal to the High Court on points of law – Whether the High Court had power to extend the time

Facts: The plaintiffs, Mr and Ms Dada, exercised a right of appeal on points of law under s. 123(3) of the Residential Tenancies Act 2004 against the determination order made by the defendant, the Residential Tenancies Board Tribunal, on 20th June, 2017. The defendant submitted that the appeal was out of time and that the High Court had no power to extend the time. The plaintiffs maintained that the Court had power to extend the time under Order 84C, Rule 1(5) of the Rules and that the well known Éire Continental principles should be applied.

Held by McDonald J that there was no mechanism available to an appellant within the Rules of Court or in the Common Law to bring an appeal to the High Court on a point or points of law out of time from a determination of the defendant by way of s. 123(3) of the 2004 Act.

McDonald J held that the plaintiffs’ appeal should be dismissed.

Appeal dismissed.

EX TEMPORE JUDGMENT OF MR. JUSTICE McDONALD DELIVERED ON TUESDAY, 19TH JUNE 2018

1 This matter was heard by me over the course of two days, commencing on the afternoon of Monday the 11th June and concluding yesterday afternoon, the 18th June. Although commenced by Special Summons, and although some of the relief claimed is framed in terms of judicial review relief, the parties have argued the matter on the basis that this is an appeal under Section 123 of the Residential Tenancies Act 2004, which I will refer to as “The 2004 Act”. The appeal is brought by the Plaintiffs from the decision of the Defendant Tribunal dated the 20th June 2017. That it is an appeal I think is clear from the terms of what I reckon to be the sixth paragraph of the unnumbered paragraphs at the beginning of the Special Indorsement of Claim because there it is said, and I quote:

“The Plaintiffs are exercising a right of appeal on points of law under Section 123(3) of the Residential Tenancies Act 2004 as amended (“the Act of 2004”) against the determination order made by the Defendant on June 20th, 2017”.

2 Now, insofar as the Defendant is concerned, no point is taken by the Defendant that the appeal has been brought in the incorrect form. In this context Order 84C provides that statutory appeals of this nature should be brought by originating notice of motion. The point that is taken by the Defendant is that the appeal is out of time and the Defendant says that the Court has no power to extend the time. I should say that the Plaintiffs accept that it is outside the time. The eighth of the unnumbered paragraphs in the Special Indorsement of Claim expressly makes this clear. It says, and I quote:

“The claim is being brought out of time but permission to bring the claim out of time has been given by the original Respondent Landlord”,

and I'll come back to the consent that has been given by that landlord in a moment.

3 Now, in order to understand the point that arises in terms of the time for the bringing of this appeal, it is necessary to set out a number of relevant dates. The first of those dates is the date of the decision of the Defendant Tribunal, which was made on the 20th June 2017. By that decision the Tribunal upheld the right of the Plaintiffs’ landlord to serve a notice of termination and to require the Plaintiffs to give up possession of their rented home in Dundalk, County Louth.

4 The second date to bear in mind is that the determination was posted to the Plaintiffs on the 20th June 2017. There is no issue raised in this case by the Defendant that the date of posting is not the date of issue of the determination. For completeness, I should add that even if it was the date of receipt or the deemed date of receipt that is the date of issue of the determination, that would make no difference. However, that is not a point that arises for consideration in this case. It is a point that arises in another case which has been part-heard by me.

5 The third date to bear in mind is that on the 3rd August 2017, the Special Summons was issued and that is manifestly more than 21 days beginning on the date of issue of the determination order, which is what Section 123 of the 2004 Act requires. Now I mentioned earlier that the landlord had given a consent and therefore the next date to bear in mind for completeness is that on the 19th July 2017 the landlord, Cluid Housing, issued a letter consenting to late filing of the appeal for 14 days from the 19th July. By my calculations that period of 14 days expired on the 2nd August 2017. Thus, even if this letter could be relied upon to extend the time, it would follow that the Summons was not issued within time. However, it seems to me a more fundamental problem arises in that I do not see how the consent of the landlord can bind the Defendant Board. It seems to me that to the extent that it might be possible for parties to agree an extension of a relevant statutory time limit it would be necessary for the Defendant to have been a party to an agreement of that kind. But, in circumstances where the Defendant here never consented to the extension of time, the question of whether it is in fact possible to extend the time limit is moot and does not arise on the facts of this case. I make no determination that it is possible or not possible, as the case may be, to extend the time by consent.

6 However, that is not the end of the matter because the Plaintiffs maintain that the Court has power to extend the time under Order 84C, Rule 1(5) of the Rules, and the Plaintiffs say that the well known Éire Continental principles should be applied. They say they would easily pass the Éire Continental test because they say, firstly, they were lay people, they could not be expected to know the law or the applicable time limits. Secondly, it is claimed they are under a disability in that it is said they are emigrants not long in this country, they are on social welfare with a large family of five children and English is only their second language. Thirdly, they say they have arguable grounds of appeal. At this point I do not propose to address those issues because the first question I have to consider is whether the Court has power to extend the time? I would, however, observe that I note from the terms of the determination made by the Defendants that the Plaintiffs had the benefit of representation by Counsel at the hearing before the Defendant, and that may suggest that they had the opportunity to take advice from legal advisers in relation to an appeal and the relevant time limits for such an appeal. However, that is a matter that only needs to be considered if I come to the conclusion that the Court has power to extend the time.

7 So, going back to the preliminary point that arises, it is necessary to consider some provisions of the 2004 Act, and obviously the provisions of Order 84C and relevant case law. The first matter to be considered then are the provisions of the 2004 Act. Section 123 of the 2004 Act deals with the ability of a party to apply, by way of appeal, to the High Court from a determination made by the Defendant Board. It provides a statutory right of appeal in Section 123(3) which is in the following terms:

“Any of the parties concerned may appeal to the High Court, within the relevant period, from a determination of the Tribunal (as embodied in a determination order) on a point of law”.

8 One needs to look at subsection 8 to identify what is the relevant period and subsection 8 provides, and I quote:

“In this section ‘relevant period’ means the period of 21 days beginning on the date that the determination order concerned is issued to the parties”.

9 It should be noted that there is no reference in Section 123 to the Court having power to extend the time. This is in contrast to the provisions of Section 88 of the same Act in which there is an express power conferred on the Board, the Defendant Board, to extend time for referring disputes to the Board, and that is contained in Section 88(1) of the 2004 Act. I do not think it is necessary to set out the terms of that subsection but it is clear from the subsection that such a power is expressly conferred by statute on the Defendant Board.

10 I think it is also useful at this point to draw attention to the position that obtained prior to the 2004 Act because under the Housing (Private Rented Dwellings) (Amendment) Act 1993, Section 13 of that Act dealt with appeals to the High Court. It, in contrast to Section 123 of the 2004 Act, provided an express statutory power for the Court to extend the time for an appeal from that Act. I think it is worth looking at the language of Section 13(1). It provides as follows, and I quote:

“A landlord or tenant may appeal to the High Court on a question of law within three months, or such longer period as that Court may allow, after the determination by the Tribunal of the terms of a tenancy under Section 5 or on an appeal under Section 11”.

11 So, it will be seen immediately that under the particular language of Section 13(1) there was a three month time limit but there was an express power given to the Court to extend that period.

12 Now, those are the relevant provisions of the 2004 Act and, to the extent that it is relevant, the 1983 Act. I now turn to consider the provisions of Order 84C of the Rules.

13 Order 84C of the Rules deals with procedures in relation to statutory appeals. It is the order that provides that such appeals should be brought by way of originating Notice of Motion. It also deals with the...