Quinn v Athlone Town Council & Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 08 July 2010
• Neutral Citation: [2010] IEHC 270
• Court: High Court
• Date: 08 July 2010

[2010] IEHC 270

THE HIGH COURT

[No. 823 J.R./2009]

Quinn v Athlone Town Council & Ors

JUDICIAL REVIEW

BETWEEN

CHRISTINE QUINN

APPLICANT

AND

ATHLONE TOWN COUNCIL, IRELAND,

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

HOUSING ACT 1966 S62

HOUSING ACT 1970 S13

CONSTITUTION

DUBLIN CITY COUNCIL v GALLAGHER UNREP 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 IESC 71

CONNORS v UNITED KINGDOM 2005 40 EHRR 9

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

DE ROISTE v MIN FOR DEFENCE 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33 2001 6 1371

F (B T) v DPP 2005 2 IR 559 2005 2 ILRM 367 2005 24 4872 2005 IESC 37

Q (M) v JUDGE OF NORTHERN CIRCUIT & DPP UNREP MCKECHNIE 14.11.2003 2003/44/10828 2004 IEHC 16

MCCANN v UK 2008 47 EHRR 40

COSTIC v CROATIA ECHR 15.01.2009 APPLICATION NO. 28261/06

LANDLORD AND TENANT

Notice to quit

Ejectment summons - District Court hearing - Refusal of adjournment to await outcome of related case - Time - Service of notice to quit - Act of eviction - Refusal of adjournment - Whether applicant guilty of delay - Prejudice - Whether wrong ongoing - Whether usual time limits applied - Acquiescence - Whether participation in District Court proceedings amounted to acquiescence - Whether statutory provision compatible with European Convention on Human Rights - Dublin City Council v Fennell [2005] 1 IR 604 and Pullen v Dublin City Council [2008] IEHC 379 (Unrep, Irvine J, 12/12/2008) applied - Carmody v Minister for Justice [2009] IESC 71 (Unrep, SC, 23/10/2009), De Róiste v Minister for Defence [2001] 1 IR 190, BTF v Director of Public Prosecutions [2005] IESC 37 [2005] 2 IR 559, Q(M) v Judges of the Northern Circuit (Unrep, McKechnie J, 14/11/2003), McCann v United Kingdom (2008) 47 EHRR 40, Cosic v Croatia (App No 28261/06) (Unrep, 15/01/2009) considered; Donegan v Dublin City Council [2008] IEHC 288 (Unrep, Laffoy, 08/05/2008) and Connors v United Kingdom (2005) 40 EHRR 9 not followed - Housing Act 1966 (No 21), s 62 - Housing Act 1970 (No 18), s 13 - European Convention on Human Rights - Rules of the Superior Courts 1986 (SI 15/1986), O 84, r 21 - Application refused (2009/823JR - Hedigan J - 08/07/2010) [2010] IEHC 270

Quinn v Athlone Town Council

Facts: The applicant was a local authority tenant and a notice to quit had been served upon her. An ejectment summons issued and the proceedings in the District Court had been adjourned initially but then an application to further adjourn the proceedings on the basis of a pending High Court decision was refused. The proceedings concerned a challenge to the compatibility and validity of s. 62 Housing Act 1966, as amended, in respect of the European Convention on Human Rights Act 2003 and the Constitution. It was argued that the proceedings were fundamentally misconceived and that the applicant should have challenged the notice to quit. Delay and acquiescence were argued to disentitle the applicant to the reliefs sought, on the basis that the notice to quit was served in 2008 and judicial review proceedings were not initiated until 2009.

Held by Hedigan J. that the applicant ought to have challenged the notice to quit, that she delayed in instituting the proceedings, that she had not demonstrated adequate reasons for the relevant time limits to be extended and that she acquiesced in the proceedings adopted by the first named respondent. The application would be refused.

Reporter: E.F.

1 Judgment of Mr. Justice Hedigan delivered on 8th of July 2010

2 These proceedings concern a challenge to s.62 of the Housing Act 1966 ("the Act of 1966"), as amended by s.13 of the Housing Act 1970. The applicant makes the case that the said section is incompatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and that it is invalid having regard to the provisions of the Constitution. At the hearing of this case on the 20 ^th April, 2010 three preliminary points were raised by the respondents. This judgment deals with these preliminary points.

3 2. Mr. Collins S.C., counsel for the second and third named respondents, contended that the proceedings before this Court were fundamentally misconceived by reason of the fact that the applicant was challenging the procedure under the Act of 1966 in the District Court and the summons issued by the District Court. He submitted that she should have been challenging the notice to quit upon which those proceedings had been based. Two preliminary issues based upon delay and acquiescence were raised by Ms. McDonagh S.C., for the first named respondent. Her preliminary objections were supported by Mr. Collins. His preliminary objection was supported by her. Ms. McDonagh submitted that the applicant had delayed in instituting these judicial review proceedings and she also argued that the applicant had acquiesced, as she had participated in the proceedings in the District Court, and for this reason the discretionary remedy of judicial review ought not be made available to her.

The Parties

4 3. The applicant is a local authority tenant and resides at 27 Brawney Square, Athlone with her two children, David (12 years old) and Tyler (9 years old). A notice to quit was served on her on the 25 ^th September, 2008. An ejectment summons issued against her in the District Court on the 7 ^th January, 2009.

5 4. The first named respondent is a local authority which has, inter alia, a housing function, in that it provides housing to persons in need of housing who cannot afford it from their resources.

6 5. The third and fourth named respondents were joined to this action as a constitutional challenge was being made to s.62 of the Act of 1966. As a challenge was being made on the basis of the European Convention on Human Rights Act 2003, the notice party was joined to the proceedings, though it was not represented at the hearing.

The Facts

7 6. A notice to quit was served on the applicant on the 25 ^th September, 2008. Based upon this notice an ejectment summons issued in the District Court on the 7 ^th January, 2009. The case was made returnable in the District Court for the 6 ^th February, 2009. On that date the matter was adjourned until the 18 ^th March, 2009 on which date counsel for the applicant applied to have the matter adjourned pending the outcome of Dublin City Council v. Gallagher [2008] I.E.H.C. 254. On the 3 ^rd July, 2009 the District Judge refused the application to adjourn the proceedings. The District Judge proceeded to conduct a hearing on the merits of the case, in contravention of the terms of s.62 of the Act of 1966, on the 15 ^th July, 2009. Judicial review proceedings were instituted by the first named respondent on the 27 ^th July, 2009 to compel the District Court to hear and determine the matter. An order to this effect resulted. The applicant instituted these judicial review proceedings also on the 27 ^th July, 2009.

The failure to seek judicial review of the notice to quit

8 7. Mr. Collins submitted that the act which set in motion all the alleged breaches of the Convention was the service of the notice to quit on the 25 ^th September, 2008 and that this is the date from which time should be calculated to run pursuant to O. 84 r.21(2) of the Rules of the Superior Courts 1986. He contended that this was clear from a reading of the judgment in Dublin City Council v. Fennell [2005] 1 I.R. 604 in which the same process was examined by the court. He referred, in particular, to the following passage at pp.638-639 of the judgment of Kearns J., as he then was:-

"The parties' legal rights and obligations were, in my view, fixed and determined once the wheel was set in motion by the service of a notice to quit, an act which triggered the provisions, requirements and consequences of s.62 of the Housing Act 1966. That is the moment when the invocation of legal rights determined the applicable law and the position of the parties."

9 In Mr. Collins' submission, the above comments of Kearns P. formed part of the ratio of the decision, as the Court had to determine at what point rights were engaged in order to determine the retrospectivity issue before the Court. He further submitted that the following passage from the judgment of this Court (Irvine J.) in Pullen v. Dublin City Council [2008] I..E.H.C. 379 followed the approach in Fennell:-

"The decision to terminate the plaintiffs' tenancy was not solely or exclusively concerned with the immediate repossession of property, thus confining the effects of that decision to potential Article 8 violation, but it also determined the rights of the plaintiffs in other respects, such as their rights to a number of statutory entitlements which are referred to at p. 18 of the statement of claim. The decisions in Bryan, Begum, Tsfayo and Leonard together with those in Salesi, Mennitto and Kurzac all are suggestive of the facts of the within case engaging those rights provided for in Article 6.

The civil rights and obligations of the plaintiffs flowed from the tenancy agreement they enjoyed with the defendant. The determination made by the defendant that the plaintiffs were guilty of anti-social behaviour, even without the defendant obtaining an order for possession, was one which altered or potentially altered the plaintiffs' future entitlements referable to housing and also to certain social welfare benefits as identified at ss. 14-16 inclusive of the Housing ( Miscellaneous Provisions) Act 1997. Further, their eviction for breach of the covenant against...