P.T. v Wicklow County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Murray
• Judgment Date: 19 December 2019
• Neutral Citation: [2019] IECA 346
• Court: Court of Appeal (Ireland)
• Docket Number: Record No. 2017/564
• Date: 19 December 2019

BETWEEN

PT

AND

AT (A MINOR SUING BY HER MOTHER AND NEXT FRIEND PT)

APPLICANTS/APPELLANTS

AND

WICKLOW COUNTY COUNCIL

RESPONDENTS/RESPONDENTS

[2019] IECA 346

Whelan J.

Costello J.

Murray J.

Record No. 2017/564

THE COURT OF APPEAL

Judicial review – Mootness – Costs – Appellants seeking costs – Whether no order for costs should be made

Facts: The appellants sought relief by way of judicial review of a decision of the respondent, Wicklow County Council, refusing their application for emergency homeless accommodation. The statement grounding the application for judicial review recorded the impugned decision as having been made on 4th April 2017, and as having been subsequently affirmed in writing on the 11th April 2017 and 20th April 2017. Following a hearing on the 20th July and 21st July, the High Court (by judgment of 15th September 2017, [2017] IEHC 194) refused the relief sought. Costs were subsequently ordered against the appellants. An appeal to the Court of Appeal was filed on 7th December 2017. On 20th February 2018 the respondent determined to provide financial assistance towards the cost of the appellants’ temporary emergency accommodation on a week to week basis. The parties adopted the position that that decision rendered this appeal moot. The respondent contended that no order for costs should be made (save for the costs of this application, which it argued should be awarded in its favour). The appellants asserted that as it was the decision of the respondent that had rendered the proceedings moot, the costs of the entire proceedings should be borne by the respondent.

Held by Murray J that the decision of the respondent of 20th February 2018 was a fresh decision based on new circumstances and not a simple revisiting of the decision of April 2017; that decision was not causally linked to the fact of the proceedings or the appeal. Having had regard to the reasons stated by the respondent for both decisions, the facts stated to the respondent in advance of the decision of 4th April and subsequently repeated on April 27, the manner in which information relating to the appellants’ financial position was furnished to the respondent over the course of correspondence following the decision and during the exchange of affidavits within the judicial review proceedings, the developments in the first appellant’s immigration status after the hearing of those proceedings, and the implication of the passage of time between April 2017 and February 2018 on the respondent’s view that the appellants had available to them alternative accommodation in Malaysia (but without expressing any opinion as to the permissibility in law of the respondent having regard to it), Murray J held that this was a case in which in all the circumstances, it was appropriate that no order for the costs of the proceedings should be made.

Murray J held that the appropriate order on foot of this application was an order vacating the order of Noonan J of 4th October 2017 that the appellants bear the costs of the proceedings in the High Court, and substituting for it an order that each party shall bear their own costs of those proceedings

Orders approved.

Judgment of Mr. Justice Murray delivered on the 19th day of December 2019

1 In these proceedings, the appellants sought relief by way of Judicial Review of a decision of the respondent refusing their application for emergency homeless accommodation. The statement grounding the application for Judicial Review recorded the impugned decision as having been made on 4th April 2017, and as having been subsequently affirmed in writing on the 11th April 2017 and 20th April 2017. Following a hearing on the 20th July and 21st July, the High Court (by judgment of 15th September 2017, [2017] IEHC 194) refused the relief sought. Costs were subsequently ordered against the appellants. This appeal was filed on 7th December 2017. On 20th February 2018 the respondent determined to provide financial assistance towards the cost of the appellants’ temporary emergency accommodation on a week to week basis. The parties have adopted the position that that decision rendered this appeal moot.

2 This judgment is directed to the question of how the costs of the proceedings should now be addressed. The respondent contends that no order for costs should be made (save for the costs of this application, which it argues should be awarded in its favour). The appellants assert that as it was the decision of the respondent that has rendered the proceedings moot, the costs of the entire proceedings should be borne by the respondent.

3 The first named appellant is a Malaysian national. The second named appellant is her daughter. The second named appellant is an Irish citizen by reason of the citizenship of her father, from whom the first named appellant is estranged. The appellants came to Ireland from Malaysia in June 2016. The first named appellant says that the reason for the move related to difficulties for her daughter – by reason of their ethnicity – in accessing secondary education in Malaysia. The first named appellant did not obtain permission to enter the State and did not upon arrival register her presence with the Irish National Immigration Service. At no point prior to the institution of the proceedings did the first named appellant seek to position herself to work in the State by seeking a Stamp 4 permission – a permission which the appellants contend she was entitled to by reason of the second named appellant's citizenship.

4 The first named appellant averred that when she arrived in the State she had savings of approximately €10,000 which she applied to bed and breakfast accommodation. She deposed in her grounding affidavit that initially the appellants lived in Arklow, subsequently moving to Bray - although the evidence suggests that they also visited and stayed in a number of counties before deciding to settle in Wicklow. The second named appellant at first attended school in Arklow, thereafter moving to another school in March 2017. The first named appellant says that by February 2017, her savings were running low. In order to save money for private rented accommodation, she says that she and the second named appellant began sleeping in her car. They did this for sixteen or seventeen days. Thereafter, she was put in contact with Bray Women's Refuge which provided her with accommodation for a month. That accommodation ceased to be available on 13th March 2017. From that point until 4th April, the appellants stayed in a combination of hostel accommodation funded by what was left of the first named appellant's own money, and accommodation funded by Focus Ireland. During this period, the appellants spent two nights sleeping in a Garda Station in Dublin City Centre.

5 On 24th February, the first named appellant applied to the respondent for assistance in providing accommodation. On 8th March, she submitted an application to be placed on the respondent's housing list. On 4th April, she met with officials of the respondent in connection with the application of 24th February.

6 That application fell to be addressed by reference to section 10 of the Housing Act 1988. This provision empowers a housing authority to provide a homeless person with such assistance (including financial assistance) as the authority considers appropriate. Section 2 of that Act states that a person shall be regarded by a housing authority as being homeless for the purposes of the Act if:

(a) there is no accommodation available which, in the opinion of the authority, he, together with any other person who normally resides with him or who might reasonably be expected to reside with him, can reasonably occupy or remain in occupation of, or

(b) he is living in a hospital, county home, night shelter or other such institution, and is so living because he has no accommodation of the kind referred to in paragraph (a), and he is in the opinion of the authority, unable to provide accommodation from his own resources.’

7 The application for emergency homeless accommodation was not successful. The information disclosed at the meeting on 4th April and outcome of the application was explained by the respondent in an e-mail to the appellants’ solicitors of 11th April as follows:

“On Tuesday 4th April 2017, during assessment at County Buildings, Wicklow, Ms. T stated she had sufficient funds to self accommodate.

In addition, she stated she has current access to monies from an employee's fund in the amount of Euro 40,000 which can be used for education and housing.

Ms. T's family has a business in Malaysia and she resided in the family home prior to coming to Ireland. Her mother has recently purchased a 5 bedroom property.”

8 It should be noted that in the course of the proceedings, officials of the respondent confirmed the correctness of the contents of the e-mail of 11th April, and elaborated upon the information they said the first named appellant had disclosed at that meeting. Although their account of the meeting was disputed, the appellants did not cross-examine those deponents in respect of those averments.

9 Following the meeting on 4th April, the appellants’ solicitors corresponded with the respondent. In a letter dated 7th April, they recorded their belief that the appellants were entitled to emergency accommodation. They said that the appellants’ funds had run out, that Focus Ireland had covered the cost of some of their accommodation but could not continue to do so, and that the appellants were in danger of sleeping rough. On 12th April the appellants’ solicitors wrote in similar terms in response to the e-mail of 11th April. In that letter, they recorded their client's denial that she had sufficient funds to self-accommodate. They explained their instructions that the employee's fund referred to in the e-mail of 11th April was not accessible by her. They...