Phelan v South Dublin County Council

• Jurisdiction: Ireland
• Judge: MR. JUSTICE MICHAEL PEART
• Judgment Date: 20 March 2019
• Neutral Citation: [2019] IECA 81
• Docket Number: Record Number: 2018/297
• Court: Court of Appeal (Ireland)
• Date: 20 March 2019

[2019] IECA 81

THE COURT OF APPEAL

Peart J.

Peart J.

Edwards J.

Whelan J.

Record Number: 2018/297

BETWEEN:

GARETH PHELAN, LISA MURPHY, BRODY MURPHY (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND, LISA MURPHY), KAMERON MURPHY A MINOR SUING BY HIS MOTHER AND NEXT FRIEND, LISA MURPHY), EMMIE-LEIGH MURPHY A MINOR SUING BY HIS MOTHER AND NEXT FRIEND, LISA MURPHY), KOBIE MURPHY A MINOR SUING BY HIS MOTHER AND NEXT FRIEND, LISA MURPHY), KYRA PHELAN A MINOR SUING BY HER MOTHER AND NEXT FRIEND, LISA MURPHY)

APPLICANTS/APPELLANTS

- AND -

SOUTH COUNTY DUBLIN COUNTY COUNCIL

AND

THE MINISTER FOR HOUSING, COMMUNITY AND LOCAL GOVERNMENT

RESPONDENTS

Judicial review – Moot proceedings – Costs – Applicants seeking costs – Whether the trial judge fell into error in determining that the proceedings became moot due to an event external to the proceedings and outside the control of the respondent

Facts: The applicants, Mr Phelan, Ms Murphy and their children, sought certain reliefs by way of judicial review including an order to quash what they considered to be the decision of the first respondent, South County Dublin County Council, dated the 22nd December, 2016 to withdraw the applicants’ emergency accommodation at the Abberley Court Hotel. By the time the proceedings came on for hearing before Noonan J on the 9th October 2017, the applicants had been provided with housing accommodation which, as noted by the trial judge, rendered the proceedings moot since the applicants could derive no benefit from any successful outcome. The appellants sought their costs in those circumstances. The trial judge decided that the appropriate order was to make no order as to costs. The applicants appealed to the Court of Appeal against that order. They considered that the trial judge fell into error in determining that the proceedings became moot due to an event external to the proceedings and outside the control of the council. It was submitted that in error the trial judge placed the onus upon the appellants to establish that the mootness did not arise as a result of an external event outside the control of the council. In that regard it was submitted that the trial judge misapplied the principles in Cunningham v The President of the Circuit Court and the DPP [2012] 3 IR 222, and that in all the circumstances the trial judge ought to have awarded the costs of the proceedings to the applicants, rather than make no order as to costs.

Held by Peart J that by stating that the applicants had failed to establish that the proceedings had become moot as a result of the unilateral action of the council in providing them with a house, the trial judge fell into error by placing that onus upon the applicants; if the council, whose action was the proximate cause of the mootness wished the court to depart from the general rule stated in Cunningham, the onus was upon it, and not the applicants, in that regard.

Peart J held that the correct order in relation to costs in this case was that the applicants’ costs in the High Court should be paid by the council given the absence of any evidential basis for a departure from the general rule. Peart J held that he would therefore allow the appeal, and make such an order.

Appeal allowed.

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 20TH DAY OF MARCH 2019

1 In these proceedings the applicants had sought certain reliefs by way of judicial review including an order to quash what they considered to be the decision of the first named respondent (‘the Council’) dated the 22nd December, 2016 to withdraw the applicants” emergency accommodation at the Abberley Court Hotel.

2 By the time the proceedings came on for hearing before Noonan J. on the 9th October 2017, the applicants had been provided with housing accommodation which, as noted by the trial judge, rendered the proceedings moot since the applicants could derive no benefit from any successful outcome. The appellants sought their costs in these circumstances. That application was resisted by the council on the basis that mootness had arisen by reason of an external event beyond its control, namely that a house became available in the ordinary course which could be allocated to the applicants, due to a change in government policy whereby extra resources were allocated to address the homeless crisis. The council argued that for a considerable period of time prior to the commencement of proceedings the council had been engaging with the applicants, and that post-commencement, it simply continued to do so in the normal course in accordance with its statutory obligations. It was simply the case that completely independently of these proceedings, and not in any way as a result of the proceedings, a suitable house became available to the council which it could allocate to the applicants. In other words, that the applicants would have been allocated this house in any event.

3 I should add that at all times the council denied that it made any decision dated the 22nd December, 2016 (or any other date) to withdraw the applicants” emergency accommodation at the Abberley Court Hotel, as is sought to be quashed in these proceedings. The council in its replying affidavits assert that the removal of the applicants from that hotel resulted from a decision of the hotel management as a result of allegations of misconduct on the part of the first named applicant, and that this was a decision in which the council played no role whatsoever. That is certainly a significant factual issue that would have to have been determined if the case had proceeded to a full hearing. If it was determined against the applicants it would have fatally undermined the application for an order of certiorari, the application for a mandatory injunction, as well as the various declaratory reliefs, not to mention the claim for damages.

4 However, having heard submissions from the parties on the question of costs, the trial judge decided that the appropriate order was to make no order as to costs. It is this order which gives rise the present appeal.

5 The applicants consider that the trial judge fell into error in determining that the proceedings became moot due to an event external to the proceedings and outside the control of the council. It is submitted that in error the trial judge placed the onus upon the appellants to establish that the mootness did not arise as a result of an external event outside the control of the council. In this regard it is submitted that the trial judge misapplied the principles in Cunningham v. The President of the Circuit Court and the DPP [2012] 3 I.R. 222, and that in all the circumstances the trial judge ought to have awarded the costs of the proceedings to the applicants, rather than make no order as to costs.

6 This Court has been provided with a transcript of what occurred firstly on the 4th July, 2017 when these proceedings first came before Noonan J. and next on the adjourned date the 9th October, 2017.

7 On the 4th July, 2017 the Court was handed a letter dated 28th June, 2017 from the council to the applicants which stated, inter alia: ‘South Dublin County Council does not have any social housing accommodation available to offer you at this time. Accordingly, you will be transferred from the commercial hotel/self-accommodate as vacancies become available in family specific temporary accommodation in Tallaght and other locations’. This letter went on to state: ‘I can confirm that your household remains eligible for the ‘housing assistance payment’ (HAP) scheme which will greatly assist in accessing the rental market. This means that you are eligible to be considered for one month's advance deposit and one month rent in advance with the differential rent payable’. At the request of the trial judge counsel sought instructions as to the import of the letter, and according to the transcript, stated the following having taken such instructions:

‘… I asked at lunchtime, arising from the general initiatives that were taken in recent times what does that mean in practical terms. And I'm told that what that means, in terms of availability, that apartment living in Tallaght Cross would become available in two months. And that again, as a result of the more general initiatives that are taken recently, it also means that in a two-month period because the applicants are sixth in the list for a three-bedroom north of Naas Road and fourth in the list for a three-bedroom south of Naas Road, that a three-bedroom property may become available in approximately a two month period. And that is effectively what that sentence [i.e. contained in the said letter dated 28th June 2017 handed into court] is referring to, judge, on a practical basis …’.

8 Shortly after that, the trial judge questioned counsel in relation to him saying that accommodation ‘may become available’ in that two-month period, to which counsel responded: ‘It will become available, judge, within that two-month period’. The trial judge went on to refer to the fact that there was a certain amount of information available ‘in the public arena in relation to this matter’, which is a reference to the fact that in the recent past a government initiative had been announced to address expeditiously the housing crisis. It appears that this initiative made available additional resources to the council in order to address housing needs within its functional...