Pullen and Others v Dublin City Council and Human Rights Commission

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 28 May 2009
• Neutral Citation: [2008] IEHC 379
• Court: High Court
• Date: 28 May 2009

[2008] IEHC 379

THE HIGH COURT

[No.5888 P/2006]

Pullen & Douglas v Dublin City Council & Human Rights Commission

IN THE MATTER OF SECTION 3(1) OF THE EUROPEAN CONVENTION ON

HUMAN RIGHTS ACT 2003

BETWEEN

LAURENCE PULLEN, CAROL PULLEN, EMMA LOUISE DOUGLAS (A MINOR) SUING BY HER MOTHER AND NEXT FRIEND, CAROL PULLEN, BRENDAN DANIEL DOUGLAS (A MINOR) SUING BY HIS MOTHER AND NEXT FRIEND, CAROL PULLEN

PLAINTIFFS

AND

DUBLIN CITY COUNCIL

DEFENDANT

AND BY ORDER

THE HUMAN RIGHTS COMMISSION

AMICUS CURIAE

AND

ATTORNEY GENERAL

NOTICE PARTY

HOUSING ACT 1966 S62

HOUSING ACT 1970 S13

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS FIRST PROTOCOL ART 1

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

DONEGAN v DUBLIN CITY COUNCIL & ORS UNREP LAFFOY 8.5.2008 2008 IEHC 288

MCCANN v UNITED KINGDOM UNREP ECHR 13.8.2008 APPLICATION NO 19009/04

HOUSING ACT 1966 S62(1)

HOUSING (MISCELLANEOUS PROVISIONS) ACT 1997 S1(1)

HOUSING (MISCELLANEOUS PROVISIONS) ACT 1997 S14(1)

HOUSING (MISCELLANEOUS PROVISIONS) ACT 1997 S14(2)

HOUSING (MISCELLANEOUS PROVISIONS) ACT 1997 S15(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

WOODS DISTRICT COURT PRACTICE & PROCEDURE IN CRIMINAL CASES 1994 P413

HOUSING (MISCELLANEOUS PROVISIONS) ACT 1997 S14

HOUSING (MISCELLANEOUS PROVISIONS) ACT 1997 S15

HOUSING (MISCELLANEOUS PROVISIONS) ACT 1997 S16

CONVEYANCING ACT 1881 S14 (UK)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(2)

CONNORS v UNITED KINGDOM 2004 40 EHRR 189

SWEETMAN v BORD PLEANALA 2007 2 ILRM 328

HARROW LONDON BOROUGH COUNCIL v QUAZI 2003 WLR 792

KAY & ORS v LAMBETH LONDON BOROUGH COUNCIL 2006 4 AER 128 2006 2 WLR 570

LEEDS CITY COUNCIL v PRICE 2006 2 AC 465

BLECIC v CROATIA 2004 41 EHRR 185

LEONARD v DUBLIN CITY COUNCIL & ORS UNREP 31.3.2008 2008 IEHC 79

DUBLIN CORPORATION v HAMILTON 1988 2 ILRM 542

O'ROURKE, STATE v KELLY 1983 IR 58

DUBLIN CITY COUNCIL v FENNELL 2005 1 IR 604

KONIG v GERMANY (NO.1) (1979-80) 2 EHRR 170

FELDBRUGGE v NETHERLANDS 1986 8 EHRR 425

SALESI v ITALY 1993 26 EHRR 187

MENNITTO v ITALY 2002 34 EHRR 1122

KURZAC v POLAND ECHR 22.2.2001 APPLICATION NO 31382/96

BRYAN v UNITED KINGDOM 1995 21 EHRR 342

TOWN & COUNTRY PLANNING ACT 1990 (UK)

RUNA BEGUM v TOWER HAMLETS LONDON BOROUGH COUNCIL 2003 2 WLR 388 2003 UKHL 5

HOUSING ACT 1996 S204 (UK)

TSFAYO v UNITED KINGDOM ECHR 14.11.2006 APPLICATION NO.60860/00

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4

HOUSING ACT 1988 S 11(2)(b)

IRISH TRUST BANK LTD v CENTRAL BANK 1976-7 ILRM 50

METOCK & ORS v MIN FOR JUSTICE UNREP 14.3.2008

HANDYSIDE v UNITED KINGDOM 1979-80 1 EHRR 737

MCMICHAEL v UNITED KINGDOM UNREP ECHR 24.2.1995 APPLICATION NO 16424/90

HOUSING (MISCELLANEOUS PROVISIONS) ACT 1997 S21

DEALE THE LAW OF LANDLORD & TENANT IN THE REPUBLIC OF IRELAND 1968 262

FENNELL v DUBLIN CITY COUNCIL 2005 1 IR 604

HOUSING

Housing authority

Warrant for possession - Summary procedure - Anti- social behaviour - Tenancy agreement - Warrant for possession granted in District court - No independent hearing - Non-independent investigative process - Absence of adequate procedural safeguards - Whether absence of independent hearing contravened art 6 and 8 of European Convention on Human Rights - Whether impermissible interference with plaintiff's rights - Investigation process - Whether defendant as organ of State exercised statutory functions in manner which failed to comply with obligations under Convention - Interference with respect for home and family life - Process selected for eviction - Whether availability of judicial review provided adequate safeguard for rights secured by Convention in absence of fully independent prior hearing - Whether interference necessary in democratic society - Legitimate aims - Whether interference justified - Adequacy of measures adopted to met due process - Breach of tenancy agreement in issue - Determination involved disputed facts and determination of credibility - Whether judicial review wholly ineffective remedy where facts upon which decision based disputed - Whether interference with family rights in accordance with law - Whether interference necessary - Proportionality - Relevant principles - Procedural safeguards - Alternative procedure available which would have provided requisite procedural safeguards - Sweetman v An Bord Pleanála [2007] IEHC 153, [2007] 2 ILRM 328, Harrow London Borough Council v Qazi [2003] UKHL 43, [2004] 1 AC 983, Kay v Lambeth London Borough Council [2006] UKHL 10, [2006] 2 AC 465, Blecic v Croatia (2004) 41 EHRR 185, Dublin Corporation v Hamilton [1988] 2 ILRM 542, State (O'Rourke) v Kelly [1983] IR 58, Dublin City Council v Fennell [2005] IESC 33, [2005] 1 IR 604, Konig v Germany (No.1) (1979-80) 2 EHRR 170, Feldbrugge v. Netherlands (1986) 8 EHRR 425, Salesi v. Italy (1993) 26 EHRR 187, Mennitto v Italy (2002) 34 EHRR 1122, Kurzac v Poland No 31382/96 (Unrep, ECHR, 22/2/2001), Bryan v United Kingdom (1995) 21 EHRR 342, Begum v Tower Hamlets London Borough Council [2003] UKHL 5, [2003] 2 AC 430, Irish Trust Bank Ltd v Central Bank [1976-7] ILRM 50, Metock v Minister for Justice [2008] IEHC 77, [2008] FCR 425, Handyside v. United Kingdom (1979-80) 1 EHRR 737 and McMichael v United Kingdom No 16424/90 (Unrep, ECHR, 24/2/1995) considered; Connors v United Kingdom (2004) 40 EHRR 189, McCann v United Kingdom No 19009/04 (Unrep, ECHR, 13/8/2008) and Tsfayo v United Kingdom No. 60860/00 (Unrep, ECHR, 14/11/2006) followed; Leonard v Dublin City Council [2008] IEHC 79, (Unrep, Dunne J, 31/3/2008) distinguished; Donegan v Dublin City Council [2008] IEHC 79, (Unrep, Laffoy J, 8/5/2008) applied - Housing Act 1966 (No 21), s 62 - European Convention on Human Rights Act 2003 (No 20), ss 3 and 5 - Conveyancing Act 1881, s 14 - Housing (Miscellaneous Provisions) Act 1997 (No 21), ss 1(1), 14 (1) and 15(2) - European Convention on Human Rights 1950, arts 6(1), 8(1) and 14 - Relief granted (2006/5888P - Irvine J - 12/12/2008) [2008] IEHC 379

Pullen v Dublin City Council

Facts: The plaintiffs were tenants of local authority housing. The local authority sought to recover possession of premises for un-neighbourly conduct pursuant to s. 62 Housing Act 1966. The plaintiffs alleged that the District Court procedure precluded an independent judicial or quasi-judicial hearing as to the circumstances of the termination of the tenancy. The plaintiffs alleged that the decision to terminate their tenancy was in breach of Articles 6 and 8 ECHR and that s. 62 was incompatible with s. 5 European Convention on Human Rights Act 2003. The issue arose as to the correctness of the decision of the High Court in Donegan v. Dublin City Council [2008] IEHC 288.

Held Irvine J. in having regard to recent decisions of the European Court of Human Rights, that the decision of Donegan was correctly decided and the doctrine of stare decisis applied. The defendants were an organ of the State for the purposes of s. 3 of the Act of 2003 and the use of s. 62 did not afford the plaintiffs an opportunity to dispute the lawfulness or the proportionality of the decision of the defendant to evict them and was thus in breach of Article 8 ECHR.

Reporter: E.F.

1 JUDGMENT delivered by Ms. Justice Irvine on the 12th day of December 2008

1. The Facts

2 The first and second named plaintiffs in these proceedings are husband and wife and they married in 2002. The third and fourth named plaintiffs are the children of the second named plaintiff.

3 The first and second named plaintiffs entered a tenancy agreement with the defendant on 15 ^th December, 2004, whereby they became tenants of the defendant's premises at 40 Cloncarthy Road, Donnycarney, Dublin.

4 Following receipt of a number of complaints of un-neighbourly conduct on the part of the plaintiffs and the investigation of those complaints by officials employed by the defendant in the form of three separate interviews conducted with the first and second named plaintiffs over an approximate six month period, a notice to quit and demand for possession of the premises was made on 3 ^rd August, 2006, within five months after the last interview.

5 The plaintiffs did not deliver up possession of the premises and, accordingly, on 28 ^th September, 2006, a summons was issued by the defendant pursuant to s.62 of the Housing Act 1966 (the Act of 1966), as amended by s.13 of the Housing Act 1970, whereby the defendant sought from the District Court a warrant for possession. On 30 ^th November, 2006, the District Court, having been satisfied with the formal proofs required by s. 62 of the Act of 1966, granted the warrant for possession. The plaintiffs' subsequent appeal to the Circuit Court was unsuccessful.

6 The District Court, when hearing an application under s. 62 of the Act of 1966, has no jurisdiction to enter into the merits of the claim for possession and must make the warrant for possession once the formal proofs are complied with. In these circumstances, the plaintiffs claim that there must be an independent judicial or quasi-judicial hearing, wherein the finding of anti-social behaviour made by the defendant and which finding was the justification for the termination of their tenancy, can be challenged by the plaintiffs at some point prior to the warrant for possession being enforced. The absence of such a...