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
BETWEEN
AND
AND
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.
JUDGMENT delivered by Ms. Justice Irvine on the 12th day of December 2008
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.
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.
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.
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.
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...
To continue reading
Request your trial-
Quinn v Athlone Town Council & Others
...O'NEILL 11.11.2008 2008/15/3150 2008 IEHC 354 RSC O.84 r21(2) DUBLIN CITY COUNCIL v FENNELL 2005 1 IR 604 PULLEN v DUBLIN CITY COUNCIL 2009 2 ILRM 484 DONEGAN v DUBLIN CITY COUNCIL UNREP LAFFOY 8.5.2008 2008/14/2927 2008 IEHC 288 CARMODY v MIN FOR JUSTICE UNREP SUPREME 23.10.2009 2009 IES......
-
Webster and Another v Dun Laoghaire Rathdown County Council and Others
...UNREP O'NEILL 11.11.2008 2008/15/3150 2008 IEHC 354 PULLEN & DOUGLAS v DUBLIN CITY COUNCIL UNREP IRVINE 12.12.2008 2008/53/11093 2008 IEHC 379 EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3 R v WESTMINSTER CITY COUNCIL, EX PARTE ERMAKOV 1996 2 AER 302 1996 2 FCR 208 1996 28 HLR 819 MULHOLL......
-
Joanna Jordan v Minister for Children and Youth Affairs and Others
...CARMODY v MIN FOR JUSTICE & ORS 2010 1 IR 635 2010 1 ILRM 157 2009/8/1838 2009 IESC 71 PULLEN & DOUGLAS (A MINOR) v DUBLIN CITY COUNCIL 2009 2 ILRM 484 2009/47/11680 EUROPEAN CMSN FOR DEMOCRACY THROUGH LAW (VENICE CMSN) CODE OF GOOD PRACTICE ON REFERENDUMS PART I ART 2.2 EUROPEAN CMSN FOR D......
-
Coyne and Another v an Bord Pleanála and Others; Coyne and Another v an Bord Pleanála and Others
...Guerra v Italy [1998] ECHR 14967/89, 19 February 1998, Kotov v Russia, no. 6142/18, 11 October 2022. 433 Pullen v Dublin City Council [2009] 2 ILRM 484. 434 McD v L & M [2009] IESC 81; Thomas Fox v Minister for Justice and Equality [2021] IESC 61. 435 Delaney & McGrath on Practice & Procedu......
-
I Can't Get No Satisfaction: An Analysis of the Influence of the European Convention on Human Rights on the Repossession of Public Housing in Ireland
...the Court to grant a perpetual injunction would be "transgressing upon the sole and 62 [2008] IEHC 288. 63 Pullen v Dublin City Council [2008] IEHC 379. 64 Ibid. 65 Pullen v Dublin City Council [2009] 2 ILRM 484 [hereinafter Pullen]. Trinity College Law Review exclusive power to make, revok......
-
The Institution of Housing: Hanoch Dagan's Realist Theories of Property and Public Housing in Ireland
...section 62 would be a desegregation of the enjoyers of property rights in the family home and the 'others'. It could be argued that 39[2008] IEHC 379. 40Padraic Kenna, Housing Law, Rights and Policy (Clarus Press 2011) 791. 41Neil Maddox, Housing Authority Law (Round Hall 2010) viii. 42 Dub......
-
The District Court, the European Convention on Human Rights Act, 2003 'Cause And Effect
...on grounds of anti-social behaviour. _____________________________________________________ 10Pullen and others v. Dublin City Council [2008] I.E.H.C. 379. 2010] ECHR Act, 2003: Cause and Effect 103 The case was appealed to the Circuit Court, and this was unsuccessful. They then proceeded by......