Shortt v Dublin City Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 21 February 2003
• Neutral Citation: 2003 WJSC-HC 11495
• Date: 21 February 2003
• Docket Number: [No. 15J.R./2001],[2001 No.
• Court: High Court

SHORTT v. DUBLIN CITY COUNCIL

JUDICIAL REVIEW

Between:

SAMANTHA SHORTT and DEAN SHORTT

Applicants

-and-

DUBLIN CITY COUNCIL

Respondent

2003 WJSC-HC 11495

[No. 15J.R./2001]

THE HIGH COURT

Synopsis:

PRACTICE AND PROCEDURE

Discovery

Judicial review - Documents sought for purpose of challenging averments in replying affidavit - Whether valid ground for discovery - Whether discovery "fishing expedition" - Whether discovery should be ordered in absence of prima facie evidence that material relied on by respondent in replying affidavit inadequate or incorrect - Rules of the Superior Courts 1986 SI 15/1986 Order 31 rule 12 (2001/15JR - O Caoimh J - 21/2/2003)

Shortt v Dublin City Council - [2003] 2 IR 69 - [2004] 1 ILRM 81

the applicants had been granted leave to quash the decisions of the respondent to issue a notice to quit in respect of premises occupied by the applicants and to seek a warrant for possession of that premises on the grounds of the alleged failure of the respondent to observe the requirements of constitutional justice, in particular the principle of audi alteram partem and the failure to furnish any or any adequate reasons. It was alleged by the first applicant that she had been informed by the respondent that a complaint had been received about the presence of heroin in her home which she said belonged to her brother who she had sought to have removed from her home, and which request she said would be recorded in documents held by the respondent. It was averred in a replying affidavit sworn by an officer of the respondent that the first applicant had been adequately informed of the complaints against her and given an adequate opportunity to respond thereto. The first applicant denied this. The applicants sought discovery of their estate management and rent files held by the respondent, all documents relating to the applicants' tenancy and the desk diaries of an officer of the respondent on the grounds that same were necessary to challenge the averments in the respondent's replying affidavit.

Held by ó Caoimh J in refusing the application for discovery that, in the absence of material suggesting that the averments in the affidavits filed on behalf of the respondent were untrue, that to direct discovery of documents in circumstances where they could only be sought to impugn the integrity of the deponent would, in general, be oppressive, especially where, as in the present case, the applicant's case could be advanced without the necessity for the discovery.

While the remedy of discovery was available in judicial review proceedings, the fact that the same was rare related to the fact that the necessity for discovery would be more difficult to establish in judicial review proceedings, by the very nature of judicial review proceedings.

Citations:

HOUSING ACT 1966 S62

HOUSING ACT 1997

MISUSE OF DRUGS ACT 1997 S15

STERLING-WINTHROP GROUP LTD V FARBENFABRIKEN BAYER 1967 IR 97

O'KEEFFE V AN BORD PLEANALA 1993 1 IR 39

ALLIED IRISH BANKS V ERNST & WHINNEY 1993 1 IR 375

RSC O.31 r12

RSC O.31 r29

RSC O.31 r12(1)

RSC O.31 r12(3)

LANDLORD & TENANT ACT 1860

LANDLORD & TENANT ACT 1931

SHEEHY & MCAULEY V IRELAND UNREP KELLY 30.7.2002 2002/25/6342

FREEDOM OF INFORMATION ACT 1997

ROONEY, RE 1995 NI 398

R V SECRETARY OF STATE FOR HEALTH EX PARTE HACKNEY LONDON BOROUGH & ORS UNREP BINGHAM CA 24.7.1994

MCGUIGAN, RE 1994 NI 143

RSC 1980 O.24 r3 (NI)

RSC 1980 O.24 r9 (NI)

R V SECRETARY OF STATE HOME DEPARTMENT EX PARTE HARRISON CA UNREP 1987 TRANSCRIPT 1246

SECRETARY OF STATE OF THE ENVIRONMENT EX PARTE ISLINGTON LONDON B C 1991 INDEPENDENT 6 SEPTEMBER

R V SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE FAYED 1998 1 WLR 763

O'REILLY V MACKMAN 1982 2 AC 237

O'DONNELL V DUN LAOGHAIRE CORP 1991 ILRM 301

GLORE NA GAEL, RE 1991 NI 117

RSC (NO 2) (DISCOVERY) 1999 SI 233/1999

HANNON V CMSR PUBLIC WORKS UNREP MCCRACKEN 4.4.2001 2001/11/3168

1 Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 21st February, 2003.

2 This matter comes before the court on an applicants" motion for discovery of documents. The application raises the issue as to when discovery of documents will lie in judicial review proceedings.

3 The applicants have been given leave to seek an order of certiorari quashing the decision of the respondent to issue to the first named applicant a notice to quit in respect of premises occupied by the applicants at 231 St. Michael's Estate, Inchicore, Dublin 8 and, further, an order of certiorari quashing a decision of the respondent to have issued a summons seeking a warrant for possession of the said premises, together with ancillary relief.

4 In the applicant's motion for discovery of documents filed the 16 ^th January, 2002, eleven categories of documents were sought from the respondent. At the stage when the motion came before this court for hearing, the only documents in respect of which an order was sought were:

5 1 The applicant's estate management file;

6 2 The applicant's rent file:

7 3 All documents touching upon or concerning the occupancy of David Shortt in the subject property and in particular, any document recording the right to reside in the property;

8 4 All documents relating to the applicants" tenancy including any document that may have altered in any way the terms, conditions or parties to the tenancy;

9 5 All documents recording requests by the applicants to have David Shortt removed from the tenancy including all entries in diaries, logs or records, which show when such requests were made. In particular discovery is sought of all entries, logs and memoranda of the rent office in which the applicants made the said requests;

10 6 The desk diaries of Mr. Stephen Shiels and his receptionist/secretary for the period 15th to 30th November, 2000, together with any memorandum concerning the applicants written by Mr. Shiels and Ms. Nora Monaghan during that period.

11 The grounds upon which the applicants were given leave to institute these proceedings essentially relate to the alleged failure of the respondent to observe the requirements of natural and constitutional justice insofar as the impugned decisions were reached allegedly without giving the first applicant an adequate opportunity to challenge and rebut material upon which the impugned decisions were reached. It is further alleged that the respondent did not provide any reasons for the impugned decision to terminate the tenancy of the first applicant and it is alleged that the only reason afforded to the District Court was "good estate management".

12 It is further pleaded that the first applicant was given no proper notification of the respondent's intention to terminate her tenancy and that she is not aware of any deliberation conducted by the respondent in advance of reaching the said decision. It is pleaded that in or about September, 1999, prior to the service upon her of the notice to quit the first applicant was called to a meeting with three officers of the respondent at which it is alleged she was informed that a complaint had been received about the presence of heroin in her home. She was warned of the consequences of this and was informed that responsibility lay with her irrespective of who brought the drugs onto the premises. It is pleaded that the complaint arose from a raid by the Garda Siochana which resulted in the seizure of approximately £400 worth of heroin belonging to the applicant's brother David Shortt. It is pleaded that no arrest was made and no charges were brought against David Shortt as a result of this raid.

13 It is further pleaded that the first applicant believes that the decision to issue her with a notice to quit and demand for possession arises from a policy to terminate tenancies of all persons suspected of involvement with the use or sale of controlled drugs irrespective of the particular circumstances of the tenant, the gravity of the particular suspected offence or the level of the personal involvement by the tenant in any such activities. It is pleaded that by adopting such a policy the respondent has fettered its discretion to consider each individual case upon its own merits and circumstances and that in adopting such a policy the respondent takes into account considerations which are not relevant to the principles and policies of the Housing Acts 1966– 1997 and fails to properly consider those factors relevant to the said Acts.

14 With regard to the estate management file it is pleaded that it contains all documents relative to the home and reveals the reasons for the eviction of the applicants and the records pertaining to the meeting of August, 1999.

15 Reference is made to the affidavit of Mr. John O'Reilly, a housing officer with the respondent, who indicates that the first named applicant was advised that he was in receipt of information from the Gardai that the first named applicant was being charged with an offence contrary to s. 15 of the Misuse of Drugs Act, 1997, and that in the circumstances he intended making a recommendation to the principal officer of the housing department that a notice to quit be served on the first named applicant to terminate her tenancy.

16 It is stated that no further matter was put to the first named applicant and no documents were put to her to support the contention that she was going to be charged.

17 The first named applicant relies upon the fact that the respondent has indicated that there is no obligation on it to offer alternative accommodation to the first applicant in the event of her eviction from the premises and that there is no obligation on the respondent to indicate to the District Court the reasons for the termination of the first applicant's tenancy on an application pursuant to s. 62 of the Housing Act, 1966(as amended) for a warrant of possession of the premises.

18 It is submitted by Ms. Ann Kelly,...