Social Rental Regulation

 

 

Cases

 

Donegan v Dublin City Council & anor and Dublin City Council v Gallagher

 

[2012] IESC 18 (27 February 2012)
Judgment Title: Donegan v Dublin City Council & anor and Dublin City Council v Gallagher

Neutral Citation: [2012] IESC 18

Supreme Court Record Number: 265/2008

High Court Record Number: 2005 3513 P

Date of Delivery: 27/02/2012

Court: Supreme Court

Composition of Court: Murray J., Hardiman J., Fennelly J., Finnegan J. McKechnie J.

Judgment by: McKechnie J.

Status of Judgment: Approved

Judgments by
Link to Judgment
Result
Concurring
McKechnie J.
Link
Other (see notes)
Murray J., Hardiman J., Fennelly J., Finnegan J.

Notes on Memo: 265/08 Donegan v Dublin City Council – Dismiss Appeal 43,54 & 69/09 Dublin City
Council v Gallagher- Allow Appeal

 

THE SUPREME COURT
265/08

Murray J.
Hardiman J.
Fennelly J.
Finnegan J.
McKechnie J.

 

Between

ANTHONY DONEGAN
align=”right”>Plaintiff/Respondent
And
DUBLIN CITY COUNCIL

First Named Defendant
And

IRELAND AND THE ATTORNEY GENERAL
Defendants/Appellants

34/09, 54/09, 65/09

 

Between

DUBLIN CITY COUNCIL
Complainant
And
LIAM GALLAGHER

Defendant
And
THE ATTORNEY GENERAL

Notice Party/Appellant

JUDGMENT delivered on the 27th day of February, 2012 by McKechnie J.

1. At the direction stage of the appellate process, it was ordered by this Court that the appeals lodged in the actions above described should be heard together. These appeals essentially relate to the impact which Articles 6, 8, 13 and 14, but in particular Article 8, of the European Convention on Human Rights (“the Convention”) have on the operation of s. 62(3) of the Housing Act 1966 (“the Act of 1996”). Although heard separately in the High Court by Laffoy and O’Neill JJ. respectively, each judge made a declaration of incompatibility regarding s. 62(3) of the Act of 1966, under s. 5 of the European Convention on Human Rights Act 2003 (“the Act of 2003”). Whilst there is considerable overlap between the two cases as presented, there are however, a number of differences which will have to be considered. Although the facts of the cases are set out fully in the judgments of the High Court (Donegan v. Dublin City Council, Ireland and the Attorney General (unreported, High Court, Laffoy J., 8th May, 2008) [2008] IEHC 288 and Dublin City Council v. Gallagher (unreported, High Court, O’Neill J., 11th November, 2008) [2008] IEHC 354, nonetheless a summary in relation to each case is necessary, so as to contextualise this judgment, which covers both cases.

2. As will become evident in a moment, the tenancy agreement attaching to the dwelling house in each case, contains identical terms which conveniently can be outlined at this point:-

• Clause 1, whereby the council let the premises to… for one week commencing on the day of … and “…so from week to week or until the tenancy shall be determined ….”
• Clause 13(a), which is in bold print and provides:

“Neither the tenant nor any member of his household … shall cause any nuisance, annoyance or disturbance to any neighbours, their children or visitors or to council staff”.

• Following paras. (b) and (c) of clause 13, which contain definitions of “neighbours” and “nuisance, annoyance or disturbance”, there is a warning in the following terms, also in bold print:

“A tenant evicted for a breach of this condition or part of it will be deemed for the purposes of re-housing to have deliberately rendered himself homeless within the meaning of Section 11(2)(b) of the Housing Act 1988 and may be not provided with another home by the Council until such time as the Council is satisfied that the evicted tenant and his family are capable of living and are agreeable to live in the community without causing a further breach of this condition”.

• Clause 25, which provides that the Council shall have a right to re-enter upon and resume possession of the dwelling for breach, non- performance or non observance of any of the provisions of the letting conditions,
• Clause 26, which provides that “the tenancy may be terminated at any time on the giving of four weeks notice by the tenant or the Council.”

• Clause 28, which provides that on the termination of this tenancy, the tenant shall “peacefully and quietly deliver up possession of the dwelling to the Council”.

Donegan v. Dublin City Council, Ireland and the Attorney General:
Facts:-
3. Mr. Donegan had previously been a tenant of a Dublin City Council (“the Council”) flat, for some 16 to 18 years, before moving to a house at 71 Bridgefoot Street, Dublin, by virtue of a tenancy agreement dated the 22nd August, 2002. His son, born in 1980, lived with him in the flat and moved with him to the house.

4. On the 20th November, 2003, An Garda Síochána searched the house on foot of a search warrant issued under the Misuse of Drugs Acts 1977/84. No unlawful drugs were found. The search was reported to the Council through a community source. The Council then requested and was furnished with a report by An Garda Síochána under s. 15 of the Housing (Miscellaneous Provisions) Act 1997 (“the Garda Report”). The Garda Report, dated the 9th December, 2003, stated that substantial evidence had been uncovered in the son’s bedroom during the search which indicated that heroin was being prepared and packed for sale on the streets. It further stated that other “drug paraphernalia” was found, including several blood filled syringes, bloodied swabs, dirty needles and needle caps, and that such items were brought to Mr. Donegan’s attention, along with the fact that “his son was known to be selling heroin on the streets”.

5. Following receipt of the report, the Council initiated an investigation into alleged “serious anti-social behaviour”. On the 22nd January, 2004 the Council wrote to Mr. Donegan offering him an opportunity to respond to the points raised and presenting his view. He was warned that if the complaints were confirmed, the Council might commence proceedings for repossession of the house. On the 2nd February, 2004, Mr. Donegan met with a Council official and he was read portions of the Garda Report, the contents of which have been outlined above. Mr. Donegan denied the allegations and contended that only one plastic bag was found and the used syringes were for his son’s personal use. The Council, as an alternative to seeking repossession of the property, gave him the option of taking out an order against his son, excluding him from the premises. On 11th February, 2004, Mr. Donegan’s solicitors wrote to the Council indicating that their client was anxious to co-operate, but that neither he nor members of his household were responsible for anti-social behaviour. To this end, he had requested his son to provide details of urine analyses to the Council, to confirm that he was not taking any “unprescribed drugs”. No reply was received from the Council to either that or a reminder letter. In fact a request made under the Freedom of Information Act 1997, was not responded to until the 30th November, 2004 which was after the service of the Notice to Quit.

6. A second meeting took place on the 19th April, 2004. Once more, sections of the Garda Report were read to Mr. Donegan, which he again explained in the manner above stated. The option of obtaining an exclusion order was further raised and he was given time to consider such option. At this meeting, Mr. Donegan furnished the Council with a letter from a clinic which his son was attending, and also with a letter from his son consenting to the release of results of analyses carried out by the clinic.

7. The next meeting took place on the 8th June, 2004, by which time the Council had obtained from the Gardai, further information regarding the search, in a letter dated 18th May, 2004. This letter recorded in particular that plastic bags with small neat circular holes in them were discovered, which in the Garda’s experience are used to bag heroin. Again the option of an exclusion order was put to Mr. Donegan: he responded that he could not apply for such as his son was not a drug pusher, but an addict, who was addressing his addiction. The Council requested him to provide information in this regard: this was done by a letter from a doctor dated the 10th June, 2004 offering his son a place in weekly group therapy sessions for cocaine users.

8. The final meeting took place on the 7th September, 2004. Again the option of getting an exclusion order was raised but was responded to as previously. Of some significance is the fact that this by date, s. 197 of the Residential Tenancies Act 2004, amending s. 3 of the Housing (Miscellaneous Provisions) Act 1997, had come into force, which permits the Council to apply for an exclusion order, if the tenant does not intend to do so “for whatever … reason”. The Council could therefore have made the application itself if it so wished: however, if it had it would have entailed an examination on the merits of the complaint against the son, and of the son’s and Mr. Donegan’s response to it.

9. The tenant was served with a Notice to Quit dated 18th October, 2004, which sought possession on 7th February, 2005. Proceedings under s. 62 of the Act of 1966 were initiated in the District Court on the 22nd March, 2005, as by that date possession had not been surrendered. In the events which have occurred, these stand adjourned pending the outcome of these proceedings, which were initiated in the High Court by Plenary Summons on 20th October, 2005.
The High Court decision:
10. In the High Court, oral evidence was given by Mr. Donegan and the Council official who had conducted all of the interviews with him. The Council also called the Garda Sergeant who wrote the Garda Report, and another Garda involved in the search. Evidence was also adduced that Mr. Donegan’s son had pleaded guilty, on the 7th March, 2005 at Kilmainham District Court, to offences under ss. 3 and 15 of the Misuse of Drugs Act 1977: the date of the offences being the 20th May, 2003.

11. Laffoy J. noted that the factual dispute between Mr. Donegan and the Council relates to the status of Mr. Donegan’s son as a drug addict, as opposed to a drug dealer. There is otherwise no dispute between the Council and Mr. Donegan, who is an employee of the Council, and who has always paid his rent and otherwise discharged his obligations under the tenancy agreement.

12. Having referred to the Supreme Court’s rejection of the constitutional challenge to s. 62(3) of the Act of 1966, in State (O’Rourke) v. Kelly [1983] IR 58 (para. 94 infra), – holding that its provisions did not constitute an unwarranted interference in the judicial domain – Laffoy J. noted, by reference to the dicta of Kearns J. in Dublin City Council v. Fennell [2005] 1 IR 604 (para. 97 infra), that the challenge of Mr. Donegan was somewhat anticipated. In essence the plaintiff contended that the process embodied in s. 62 of the Act of 1966 does not contain the requisite procedural safeguards so as to afford him the right to respect for his private and family life and his home, as guaranteed by Article 8 of the Convention. Whilst Articles 6, 13 and 14 and Article 1 of the First Protocol (peaceful enjoyment of possession) were also relied upon, this in substance is an Article 8 case. In this regard the decision of the European Court of Human Rights (“ECtHR”) in Connors v. United Kingdom [2004] 40 E.H.R.R. 189 was heavily relied upon.

13. The decisions of the ECtHR on Article 8 of the Convention, which include Larkos v. Cyprus [1999] 30 E.H.R.R. 597, and the aforementioned Connors were then considered. The consideration of Connors preceded on the basis that since a “home” was involved, Article 8 was engaged, that the interference was “in accordance with law” and pursued a legitimate aim; therefore the only question was whether the interference was “necessary in a democratic society”. In this regard Laffoy J. quoted from para. 81 (necessity and proportionality) and para. 83 (procedural safeguards) of the judgment. She then referred to the court’s conclusion which was to the effect that the procedural safeguards in place, including the possibility of judicial review, were insufficient to justify the serious interference with the complainant’s rights and thus, such interference “cannot be regarded as justified by a pressing social need or proportionate to the legitimate aim being pursued” (para. 95).

14. The learned judge also referred to the decision of the ECtHR in Blecic v. Croatia [2004] 41 E.H.R.R. 13. The court in that case rejected the argument that the procedures involved breached Article 8 of the Convention on the basis that, inter alia, the applicant had an opportunity at first instance, aided by counsel, to fully present her case, and whilst the appeal process was of a review nature only, nonetheless she had further opportunities at each stage to make her views known. It was for these reasons that the ECtHR was satisfied that there had been no violation of Article 8.

15. Laffoy J. continued by considering the post-Connors United Kingdom (“U.K.”) authorities (Harrow LBC v. Qazi [2004] 1 AC 983; Kay v. Lambeth LBC [2006] 2 AC 465; Leeds City Council v. Price [2006] EWCA Civ 1739; Doherty v. Birmingham City Council [2006] EWCA Civ 1739; Hughie Smith v. Buckland [2007] EWCA Civ 1318). It is not necessary to outline in detail how the learned judge analysed these cases, save for the manner in which she dealt with one point: she did so, having regard to the conclusions reached in Hughie Smith, by stating:-

“[I]t is the act of eviction, rather than the act of making a possession order, which interferes with a person’s right to respect for his home … [T]hroughout the judgment in Connors the emphasis is on eviction rather than on the possession order, citing by way of example paras. 68, 85, 89, 92, 94 and 95. I think that a distinction exists. In the plaintiff’s case it was not the decision to serve the notice to quit, or the service of the notice to quit which interfered with his Article 8 rights. Rather, the application for a warrant for possession under s. 62 is an anticipatory interference with his rights under Article 8, because of the inevitability that the application will be successful.”
16. The trial judge also undertook a consideration of the High Court decision of Dunne J. in Leonard v. Dublin City Council & Ors. (unreported, High Court, Dunne J., 31st March, 2008) [2008] IEHC 79. Again it is not necessary to set out in detail this analysis. However, in summing up the differences between Leonard and the present case, Laffoy J. noted that:-
“Ms. Leonard’s challenge to s. 62 focussed on the procedure before the District Court. The complaint was not that the Council was not entitled to terminate the tenancy agreement for the reasons stated. As is clear from the judgment, Ms. Leonard admitted that she was in breach of s. 13. Unlike the situation which prevailed in Connors and the situation which prevails in this case, there was no factual dispute concerning the reason for terminating the tenancy and the Council’s entitlement to do so.”
The reference to “s. 13” was clearly intended to refer to clause 13 of the Tenancy Agreement (para. 2 supra).
17. In concluding on whether there had been an infringement of Article 8 of the Convention, having noted that she was satisfied that Mr. Donegan’s case fell squarely within the core principles established by the judgments in Connors and Blecic, Laffoy J. made a number of preliminary observations before outlining how those judgments applied to the case at hand:

i) What transpired between the Council officials and Mr. Donegan, from late January, 2004 until 4th October, 2004, the date of the managerial order directing the service of the Notice to Quit, cannot be viewed as a procedural safeguard or as a method of review of the Council’s decision-making process, it was an investigation;
ii) In line with the decision in Hughie Smith v. Buckland [2007] EWCA Civ 1318, it was the outcome of the s. 62 application which gives rise to an interference with the tenant’s rights under Article 8 of the Convention, not the service of the Notice to Quit;

iii) Had judicial review been sought by Mr. Donegan immediately after the issuance of the Notice to Quit, his application “would have had no prospect of success” and judicial review does not constitute a proper procedural safeguard where this is a dispute of facts (notwithstanding the actual wisdom of the Council in advocating judicial review as an answer to the question of procedural safeguards); and

iv) Section 3 of the Act of 2003 is not an effective remedy under domestic law for the purposes of Article 13 of the Convention.

18. On foot of Connors and Blecic, Laffoy J.’s disposition of the case was:
i) the house is Mr. Donegan’s home for the purposes of Article 8;
ii) if a warrant for possession is obtained under s. 62 of the Act of 1966 and executed, it will interfere with his rights under Article 8 of the Convention;

iii) under Irish law, applying s. 62, there is no defence to the Council’s claim for possession and, accordingly, the interference will be in accordance with law, and;

iv) the interference has a legitimate aim, namely good estate management by the Council, including the necessity to take steps to avoid or prevent anti-social behaviour, and the due discharge of its statutory obligations to provide accommodation for qualifying persons.

19. The only question which remained was whether the interference is necessary in a democratic society. In this regard Laffoy J. noted that one must ask whether the interference answers a pressing social need and is proportionate, and in light of Connors and Blecic, it is not. In particular, in assessing the proportionality of the interference “it is necessary to assess whether the decision-making process leading to the measures of interference is fair and such as to afford due respect for the interest safeguarded by Article 8.” Ultimately she concludes, in light of her previous findings, that s. 62 therefore infringes Article 8 of the Convention.
20. Having found that s. 62 was not capable of a Convention compatible interpretation applying s. 2 of the Act of 2003, Laffoy J. was satisfied that this was an appropriate case in which to grant a declaration of incompatibility under s. 5(1) of the Act of 2003:

“[I]nsofar as it authorises the District Court, or the Circuit Court on appeal, to grant a warrant for possession where there is a factual dispute as to whether the tenancy has been properly terminated by reason of a breach of the tenancy agreement on the part of the tenant in the absence of any independent machinery for an independent review of that dispute on the merit being available at law.”
21. A Notice of Appeal was lodged on the 29th July, 2009 by Ireland and the Attorney General, which was later supported by extensive written submissions.
Dublin City Council v. Gallagher:

Facts:-
22. The mother of Mr. Gallagher occupied, under a tenancy created by the Council, No. 11 Adare Road in Dublin 17, for several years prior to her death. The essential terms of the letting agreement, were those as set out at para. 2 supra. In addition and what is relevant to this case is the fact that the rent payable was differentially calculated, the amount of which was directly related, inter alia, to those living in the premises whose income should be included for that purpose. Mr. Gallagher did not live with his mother between August, 1995 and May, 1997 when he resided with his partner elsewhere: such is not in dispute. Neither is the fact that his name was removed from the rent account of the premises in August, 1995, and was not re-entered at anytime thereafter. An issue, but not the only one, is where in fact he did reside from May, 1997 to July, 2005.

23. Mr. Gallagher’s mother died on the 12th July, 2005. On the 25th August, 2005 he made an application to the Council to succeed to his mother’s tenancy. The Council rejected this application by letter dated 20th September, 2005, on the grounds that Mr. Gallagher did not fulfil either of the criteria set down in the Council’s Scheme of Letting Priorities for succession to tenancies, created under s. 60 of the Act of 1966, which were that:-

i) he had resided at the address for a period of two years immediately prior to his mother’s death; and,
ii) he was on the rent account for the premises during the same two year period.

24. At Mr. Gallagher’s request he met with the Council and subsequently submitted additional documentation in support of his position as to residency, which according to the Council’s letter of rejection on the 5th January, 2006, was only to the effect that he had been living there for two and a half years prior to July, 2005. Following this unsuccessful effort of persuasion, the Council issued and served a Notice to Quit and Demand for Possession on Mr. Gallagher and on the personal representatives of his mother’s estate. A Summons under s. 62 of the Act of 1996 was then served to recover possession of the property.
25. During the resulting proceedings before the District Court, the Judge made certain findings of fact, including (i) that, save for the aforementioned 2 year period, Mr. Gallagher had continuously lived with his mother at No. 11 Adare Road and had regarded such dwelling as his permanent residence and (ii) that he had not been on the rent account or assessed for rent in respect of that property since August 1995. As can be seen the first finding was contrary to that previously made by the Council. Before the District Court Mr. Gallagher argued, that the Act of 2003, when enacted, imposed a requirement of evidentiary and fair procedures on the Council, when seeking a warrant for possession under s. 62 of the Act of 1966. The District Judge, on foot of these submissions, therefore decided to pose four questions to the High Court, by way of case stated.

26. These were as follows:

“1. Is there an obligation on the District Court by virtue of section 2 of the European Convention on Human Rights Act 2003, to interpret section 62 of the Housing Act 1966, as amended by section 13 of the Housing Act 1970, insofar as is possible in a manner compatible with the State’s obligations under the Convention in proceedings issued by the Complainants under section 62 of the Housing Act, 1966 as amended by section 13 of the Housing Act, 1970 subsequent to the coming into operation of the said European Convention on Human Rights Act 2003?
2. If the High Court answers Question (1), above in the affirmative, in appearing to a summons in the District Court issued pursuant to proceedings under section 62 of the Housing Act 1966 as amended by section 13 of the Housing Act 1970, does a District Court Justice have a discretion to explore the merits of the matter, and is he/she then entitled to address the merits of the aforesaid procedures in endeavouring to show cause why a warrant under section 62 of the said Act should not issue for delivery of possession of the relevant dwelling to the Complainants in reliance upon Articles 6, 8 and 13 of the Convention and Article 1 of the First Protocol thereto?

3. In appearing to a summons in the District Court issued pursuant to the procedures provided for under section 62 of the Housing Act 1966 is a Defendant entitled to address the merits of the aforesaid procedures in endeavouring to show cause why a warrant under section 62 should not issue for delivery of possession of the relevant dwelling to the Complainants in reliance upon Articles 6, 8 and 13 of the Convention and Article 1 of the First Protocol thereto?

4. Is the effect of section 2 of the European Convention on Human Rights Act 2003, that a local authority must adduce evidence in proceedings under section 62 of the Housing Act 1966, as amended, justifying its decision to terminate a tenancy and/or to seek a warrant for possession?”

27. In essence, advice was sought as to whether s. 2 of the Act of 2003, placed an obligation on the District Court to interpret s. 62 of the Act of 1966, insofar as possible, in a manner compatible with the State’s obligations under the Convention, and if so, to what extend could the District Judge enter into the merits of the decision to seek delivery of possession of the relevant dwelling.
The High Court decision:-

28. O’Neill J. in the High Court, outlined his approach to the questions posed in the manner following:-

“Section 2 of the 2003 Act requires that this Court must approach the construction of s. 62 of the 1966 Act ‘subject to the rules of law relating to such interpretation’. If I am to consider that correct construction of this section within these legal limits, it seems clear to me that the starting point in attempting to construe this section in a Convention compatible way is to first determine the correct construction without regard to the Convention and having done that to then see whether it is possible to impose or intertwine a different meaning where that is necessary to avoid incompatibility with the Convention. Where it is not possible to achieve this without breaching the rules of law relating to interpretation, and where there is an evident breach of a Convention right resulting from what is a correct interpretation of the law in question, the proper solution to that problem is a declaration of incompatibility under s. 5 of the Act 2003.”
29. O’Neill J. therefore proceeded to consider the correct way in which s. 62 of the Act of 1966 had to be interpreted in light of s. 2 of the Act of 2003. He noted that there was a significant difference between the wording of s. 2 of the Act of 2003 and the analogous U.K. provision, in s. 3(1) of the Human Rights Act 1998 (“the U.K. Act”). In particular the U.K. Act did not contain the phrase “subject to the rules of law relating to such interpretation”, as contained in s. 2 of the Act of 2003, but instead stated that: “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”.

30. This difference meant that whilst the Irish courts were bound to continue applying the rules of construction which had applied prior to the Act of 2003, the U.K. courts were not so bound: therefore they were afforded a far greater range of manoeuvre in imposing a compatible interpretation on a statutory provision in light of the Convention. In this regard he noted the judgments of Lord Hope and Lord Steyn in R v. A [2001] 3 All ER 1.

31. In considering the construction of s. 62 of the Act of 1966, O’Neill J. applied Fennell (para. 12 supra) to the effect that on a s. 62 application, the District Court had no discretion to explore the underlying merits and had no jurisdiction to address the procedures employed by the Council in arriving at its decision to terminate the tenancy: in effect it was a “rubber stamping” exercise, so that once the proofs were established, the District Court had to grant the order.

32. The judge, in arriving at this conclusion, rejected an argument to the effect that it was possible to construe s. 62 of the Act of 1966 together with s. 86 of the Landlord and Tenant Law Amendment Act Ireland 1860 (“Deasy’s Act”), as obliging the District Court to hear and determine the application on the basis of the merits of the case. On such submission his opinion was:

“To reach that conclusion, it would … be necessary to firstly, treat as null the clear provision of s. 62(3) of the Act of 1966 and then to create a provision whereby the jurisdiction of the District Court on an application under s. 62(1) of the Act of 1966 is extended to a full hearing of the case on the merits. The latter would be necessary, because as a statutory jurisdiction, in the absence of s. 62(3) there would be no jurisdiction at all to grant a warrant, unless a new basis for the exercise of jurisdiction was created, or to be more precise, legislated. Manifestly, either of these exercises or the combination of them would cross the boundary between interpretation and legislation and under longstanding rules of law governing statutory interpretation would be impermissible. Section 86 of Deasy’s Act does not rescue the matter.”
Indeed he noted that even had the more expansive U.K. provisions been concerned, this still would have been impermissible.
33. Having therefore found that it was not possible to read s. 62 of the Act of 1966 in a Convention compliant manner, in accordance with s. 2 of the Act of 2003, he proceeded to deal with the matter firstly in the context of Article 8 of the Convention and having done so by then invoking s. 5 of the Act of 2003. Being satisfied, that the property was Mr. Gallagher’s “home” which of itself invoked Article 8, that the interference was in accordance with law and had a legitimate aim, being the regulation of a limited housing stock required to be distributed in accordance with the Council’s Scheme of Letting Priorities, he concluded that the only issue was whether it was “necessary in a democratic society”.

34. Citing Connors (paras. 12 and 13 supra), he noted that the ECtHR had also recognised that Article 8 encompasses implicit procedural requirements, and that these must be considered when assessing the proportionality of any interference with Article 8 rights. In this regard such requirements were similar to the constitutional guarantee of fair procedures which flows from Article 40.3.1 of the Constitution (In re Haughey [1971] I.R. 217 and Flanagan v. University College Dublin [1988] 1 I.R. 724 cited). O’Neill J.’s conclusion on this point was:-

“The jurisprudence of the European Court of Human Rights suggests that in the realm of eviction proceedings there should, in principle, be an opportunity for an independent tribunal to adjudicate on the proportionality of the decision to dispossess. In McCann the Court stated as follows:

‘50. The loss of one’s home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right of occupation has come to an end.’”
35. In relation to the alleged infringement under Article 6 of the Convention, the learned judge considered McCann v. United Kingdom [2008] ECHR 385, in which the ECtHR had found that the complaint was more properly referable to Article 8, and that no separate issue arose under Article 6 of the Convention, since complaints relating to the fairness of proceedings may only relate to the actual determination of one’s rights and obligations. In McCann it was accepted that it was the courts, rather than the local authority, which ultimately made a determination of the applicant’s civil rights and obligations. O’Neill J. distinguished the situation with regards to Mr. Gallagher, noting that:-
“[U]nlike the McCann case, there was a determination of the defendant’s rights by the complainant, insofar as it made the decision that the defendant was not entitled to succeed to the tenancy. There was no appeal from this decision within the decision making structures of the complainant and the issue could not be opened up again in the s. 62 proceedings as discussed above. Thus I am satisfied that I should adopt a different approach in this regard to the McCann case and am inclined to conclude that the defendant’s complaint about the procedures followed by the complainant to determine his claim to succeed to his mother’s tenancy engaged his Article 6 rights.”
He was however satisfied that insofar as Mr. Gallagher’s Article 6 rights were engaged, they were confined to the process carried out internally by the Council; no complaint having been made as to the fairness of the conduct of proceedings before the District Court.
36. Considering Connors, O’Neill J. did conclude however that the restriction in s. 62 of the 1966 Act, to exclude a hearing on the merits did not raise fair procedures grounds. Rather, this restricted jurisdiction gave rise to grounds of complaint under Article 8 of the Convention, since these proceedings resulted in the final legal instrument which deprived Mr. Gallagher of his home, in circumstances where he did not have a hearing of his case on the merits, thus depriving him of procedural safeguards deemed essential by the ECtHR.

37. Having considered the cases of Leonard (para. 16 supra) and Donegan (paras. 3 to 21 supra) and in particular the way in which Laffoy J. distinguished the former from the latter, (para. 16 supra) he was therefore satisfied that:

“[T]he defendant’s rights under Articles 6 and 8 of the Convention and his right to fair procedures under Article 40 of the Constitution have not been adequately protected in this entire process.”
Furthermore, he concurred with the opinion expressed by Laffoy J. in Donegan that in the present circumstances, where there would be no question of a hearing on the merits, judicial review could not be described as a sufficient “procedural safeguard” as required by Article 8 of the Convention.
38. Finally he noted that he was entitled to make a declaration under s. 5 of the Act of 2003 in a case stated procedure in light of the phrase “in any proceedings” contained therein. He therefore made such a declaration that s. 62 of the Act of 1966 is incompatible with the Convention.

39. The Attorney General and the Council, by Notices of Appeal dated the 19th and 20th February, 2009 respectively, appealed this decision, and Mr. Gallagher cross-appealed on the 24th February, 2009. The grounds relied upon by all parties were expanded upon in written submissions, which are considered below.
Submissions:-
40. A number of submissions have been received from the Attorney General, the Council and Messrs. Donegan and Gallagher. The latter will be dealt with together as they cover broadly similar ground. Where significant differences or case specific arguments arise, these will be identified.

41. The Attorney General lodged submissions in Donegan on the 30th April, 2010 and in Gallagher on the 21st October, 2009. These submissions were substantively the same, save for a number of issues which related specifically to Mr. Gallagher’s case; his being later in time.

42. At the outset the Attorney General notes that whilst the judgments are careful and considered, if upheld the decisions would have far-reaching implications, which extend beyond the law of recovery of local authority dwellings. In particular, whilst it is not explicitly stated, the judgments would appear to envisage a comprehensive judicialisation of the process of recovery of possession of local authority housing; requiring a hearing on the merits and an assessment of the proportionality of the grant of a warrant for possession either by the District Court or some other independent review body. If there were disputed issues of fact, this might require summonsing witnesses, oral evidence and cross-examination. Given the issues to be considered in such proceedings, it is also arguable that legal aid would be required (see comments of O’Caoimh J. in Byrne v. Scally (unreported, High Court, O’Caoimh J., 12th October, 2000) [2000] IEHC 72). Such requirements, it is stated, would reduce the summary process for recovery of possession, to a slow and expensive “gridlock”. This court should therefore carefully scrutinise the decisions, given the far-reaching practical implications which could arise therefrom.

43. The next matter which the Attorney General takes issue with, is that the s. 62 proceedings were in some way deficient because they did not permit a hearing “on the merits” and/or in relation to the “proportionality” of the Council’s decision. There is nothing improper in the District Court on an application under s. 62 of the Act of 1966, being confined to a consideration of a limited number of matters, and not being in a position to substitute its own views for those of the Council. In particular, given the competing right of the Council to recover its property, and its public law obligations to manage the housing stock, and take account of others, including neighbours and prospective tenants, summary proceedings are justified, by reference to the Convention. Were the District Court required to decide upon the proportionality of the Council’s decision, it could not do this without adequately knowing the extent of the housing available, the number seeking accommodation, the other demands on the Council’s budget, and also perhaps the views of neighbours, family members and other parties. Such matters are ill-suited to the decision-making process of the court.

44. The Attorney General observes that s. 62 of the Act of 1966, cannot be viewed in isolation, and must be considered in the entirety of the legal context applying to local authority housing, including the remedies available to a tenant or prospective tenant, before deciding on its compatibility with Article 8 of the Convention. It should be noted that far greater protections are afforded to public housing tenants than to private tenants. In this regard, significant opportunities are available to challenge the procedures and actions of the Council and their application in individual cases; for example by reference to the constitutionality of the legislation, the vires of the regulations and schemes made thereunder, the fairness of the procedures adopted, or the compatibility of the foregoing with the Convention. A case in point is Wynne v. Dublin Corporation (unreported, High Court, Shanley J., 22nd July, 1998) where the High Court held that the decision of the Council to issue a Notice to Quit was invalid for failing to take into account all the relevant circumstances at the date of the issuance of that notice (see also Bristol District Council v. Clarke [1975] 3 All E.R. 976). None of these remedies would be open to a private tenant.

45. A number of Irish cases are drawn to the court’s attention. In particular The State (O’Rourke) v. Kelly (para. 12 supra); Dublin City Council v. Hamilton [1999] 2 IR 486, and Byrne v. Scally (para. 42 supra). From these decisions it is contended that it is clear that there is nothing improper in the District Court, on a s. 62 application, being confined to consider only issues of proof and not being required to consider justification from the Council or to grant legal aid to a defendant. The comments of the Supreme Court in Fennell (para. 12 supra)should be noted in this regard: although holding that the Convention could not be invoked in relation to proceedings instituted before the coming into force of the 2003 Act, the court observed that s. 62 had survived constitutional and judicial scrutiny “not least because of the obvious need of a housing authority to be able to effectively manage and control its housing stock without being unduly restricted or fettered while so doing.”

46. Although the High Court in the instant case relied upon the decisions of the ECtHR in Connors (paras. 12 and 13 supra) and McCann (para. 35 supra) these only form part of a line of developing authority, which does not appear to have reached its terminus and which is more complex that suggested by either High Court judgment. In particular reference is made to the U.K. cases (cited at para. 15 supra) of Harrow LBC v. Qazi, Kay v. Lambeth LBC, and Doherty v. Birmingham City Council. Following a detailed analysis of these cases, and their consideration of the jurisprudence of the ECtHR as recorded, in particular in Connors and McCann, the Attorney General submits that it is clear that the repeated attempts by the House of Lords, on the one hand, and the ECtHR, on the other, to resolve the question of the application of the Convention to possession proceedings for public authority housing has given rise to “considerable confusion and indeed frustration”. It cannot, it is submitted, be presumed that the position is resolved or clarified. In such circumstances this court should adopt the approach of Lord Hope in Qazi, namely that each case should be determined on its own facts and broader generalisations should be avoided. In this regard, the approach adopted in the High Court is far too sweeping, and too far removed from the specific facts of the case. It is entirely possible for the court to resolve, on narrower grounds, the issues in the present cases, without recourse to a Declaration of Incompatibility.

47. Whilst it is admitted that the ECtHR has found that the remedy of judicial review in the U.K. is not of itself sufficient to comply with the Convention requirement under review in the instant cases, it is however submitted that this conclusion cannot be applied to all cases, nor does it mean that any deficiency, if such continues to exist, cannot be remedied. In particular the Attorney General notes that judicial review is an extraordinarily powerful remedy, which has been extremely effective in the control of administrative action. It extends beyond a reconsideration of the facts and can invalidate actions irrespective of the merits. It is an over-generalisation to say that the procedure cannot resolve any factual controversy. On judicial review, where it is determined that there is a matter of fact in controversy, which is relevant to the dispute, it is commonplace for discovery and cross-examination to be available. Further, there is jurisdiction to quash decisions on the basis that a tribunal has proceeded on an “incorrect basis of fact” (see Secretary of State, Education and Science v. Tameside [1977] AC 1014 at 1047; De Smith, Judicial Review (Sweet and Maxwell, 6th ed., 2007), paras. 11-048 to 11-051; Craig, “Judicial Review Appeal and Factual Error” (2004) Public Law 788; and, Daly, “Judicial Review of a Factual Error in Ireland” (2008) 30 D.U.L.J. 187), and it is accepted that there is jurisdiction to direct judicial review proceedings to continue by way of plenary hearing. The limitation in relation to fact finding in judicial review is therefore not a general one. Whilst it is true that review on the ground of unreasonableness, established in State (Keegan) v. Stardust Tribunal [1986] I.R. 642, has been applied, so that a court will not review the conclusion of a decision-maker unless it is one which not reasonable body could have come to, the structure of unreasonableness and irrationality recognises the separation of powers between the courts and administrative decision-makers.

48. Even if judicial review was considered to be an insufficient procedural safeguard, the Attorney General argues that the court should consider if, as discussed in Doherty, it is possible to make adjustments to its procedures to satisfy the requirements of the Convention. In this regard if adapted, such procedures should be sufficient to constitute “respect” for the home of the applicant. Furthermore, judicial review would in any event seem peculiarly suited to disputes such as have arisen, where it is only in highly exceptional circumstances that a court would consider, that the Convention required a party seeking possession, to do more than had been agreed when the tenancy was first established.

49. Ultimately it is only if the range of remedies available, including judicial review, is considered to be inadequate, at least to satisfy Article 6 of the Convention, that the question of compatibility of s. 62 of the Act of 1966 would arise. Even should the compatibility of s. 62 of Act of 1966 be considered, it should be borne in mind that the words contained in s. 2 of the Act of 2003, “subject to the rules of law relating to such interpretation and application”, qualify the preceding words “in so far as possible”. It is only if no Convention compatible interpretation is open, should the court consider making a declaration under s. 5 of the Act of 2003. It is further submitted, in any event, that even if the court were to conclude that it was necessary to permit the District Court to consider the reasonableness of the Council’s decision, then it is still possible to do so, by reference to the Landlord and Tenant Act (Amendment) (Ireland) 1860 (“Deasy’s Act”). A Declaration of Incompatibility should not, therefore, have been made in relation to s. 62(3) of the 1966 Act.

50. A number of points were raised by the Attorney General in relation to Mr. Gallagher only, and these will now be outlined. The Attorney submitted that the analysis of the High Court proceeds on the basis that this case is at least functionally indistinguishable from the situation in Donegan size=”2″ face=”Verdana”> (paras. 3 to 21 supra) and Leonard (para. 16 supra). However, there are significant factual and legal differences in this case which, if they had been identified, would have given rise to a different result. Firstly, it is submitted that, Mr. Gallagher is not, nor ever has been, a tenant of the Council. He therefore had no legal right to be on the premises. In this regard it is important to bear in mind that Article 8 of the Convention does not confer a right to a home (Chapman v. United Kingdom [2001] 33 EHRR 399, at para. 99; Kay (para. 15 supra)). The decision to be made by the District Court was whether or not the Council should be granted an order for possession. If, as is implicit in the High Court judgment, the District Court should be entitled to refuse the order on the grounds that the Council was wrong in refusing to permit Mr. Gallagher to succeed to this mother’s tenancy, then a situation may arise, where a person may be in occupation who cannot be removed, and whose occupation is unregulated by any agreement or statutory provision; in effect such a person would become at least a “non-illegal occupier”. Such a situation should not be countenanced.

51. The next issue taken with the judgment is the characterisation of there being a dispute as to facts between the parties; in particular with regards to whether Mr. Gallagher had been resident in the premises for the two years prior to his mother’s death, which if resolved in his favour would lead to him becoming entitled to succeed to the tenancy, and therefore defeat the s. 62 proceedings. However, it is clear that there is no relevant factual dispute, since it was accepted that Mr. Gallagher had not, in any event, been on the rent book for two years prior. The lack of this prerequisite, under the Scheme of Letting Priorities, was in and of itself, fatal to any application to succeed: consequently, the residency issue was irrelevant. Mr. Gallagher therefore would inevitably have had to fail in his application. It is highly relevant in this regard that Mr. Gallagher did not dispute the rent book issue. It is therefore difficulty to understand what deficiency there can be said to lie in the s. 62 procedure operated in this case.

52. Furthermore, the High Court judgment would seem to contemplate the possibility that a court or tribunal could refuse to grant a warrant of possession, if it considered that the failure to comply with a requirement of the Council’s Scheme of Letting Priorities, was merely an oversight or could be excused. This demonstrates the potential breadth of the decision. If this is correct the District Court on an application under s. 62 of the Act of 1966, or some other tribunal, would be entitled to form its own view, in any individual case, as to whether a person complied with the Scheme of Letting Priorities, and further, it seems, would also be invited to consider whether non-compliance should be excused.

53. It is finally submitted in this regard that the question of compatibility of s. 62 of the Act of 1966 with the Convention simply did not arise. There was no relevant factual dispute which, if resolved in his favour, would entitle Mr. Gallagher to a tenancy under the Scheme of Letting Priorities. There was no challenge to the validity of the Scheme of Letting Priorities, or the decision of the Council not to permit Mr. Gallagher to succeed to the tenancy.

54. The Council provided written submissions in Donegan size=”2″ face=”Verdana”> on the 2nd June, 2010 and in Gallagher on the 22nd June, 2010. The latter submissions adopted those previously made, and added further and additional points.

55. By way of general overview, the Council submits that Article 8(1) of the Convention guarantees every person the right to “respect” for his private and family life and, as relevant to the instant cases, his home. By virtue of Article 8(2) of the Convention, no interference by a public authority with the enjoyment of these rights is permitted, unless such is in accordance with law, pursues a legitimate aim, as provided for in Article 8(2) of the Convention, and is necessary in a democratic society. The ECtHR has held that any person at risk of an interference with his rights, referable to this home, should in principle, be afforded the opportunity to have the proportionality and reasonableness of the measure determined by an independent tribunal in light of the relevant principles, developed in that regard under Article 8: this notwithstanding that, under domestic law, he or she has no right to occupy the dwelling in question (see McCann (para. 35 supra) and Paulic v. Croatia [2009] ECHR 1614 and McMichael v. United Kingdom [1995] 20 EHRR 205.

56. The Council notes that s. 62 of the Act of 1966 has withstood constitutional scrutiny, and supports the arguments of the Attorney General in this regard. It claims that the section has proved to be a “vital tool” in the fulfilment of the Council’s housing functions, and forms a key part of its strategy for dealing with anti-social behaviour, especially in light of the “very real difficulty of adducing oral testimony” of such behaviour, should the Council be required to do so in possession proceedings. The Council also undertakes numerous other administrative decisions, some of which have a factual context and thus potentially may engage with Convention rights. Should this Court find that a full appeal on the merits to an independent tribunal is necessary, significant burdens would be placed on the Council pending any legislative amendment, as it would be unable to safely act upon factually based decisions, for fear of being found to have acted in breach of the Convention, and thereby potentially expose itself to claims in damages under s. 3 of the Act of 2003. Such a finding would also have serious implications for the Council’s finances and resources.

57. It further contends that, the claim in reality is not that s. 62 of the Act of 1966 is incompatible with the Convention, but rather that no effective remedy is available in respect of the Council’s decision: as such this would, at most, be a breach of Article 13 of the Convention. Accordingly, since a Declaration of Incompatibility requires that the court be satisfied that (a) no other legal remedy is adequate and available, and (b) s. 62 is incompatible with the State’s obligations, such a declaration should not have been issued in these cases. In this regard, the cases of Connors, Blecic and McCann should be considered. Although it is clear from these cases that the application of conventional grounds of review in accordance with the test expounded in Associated Provisional Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223 is not sufficient to meet the requirements of Article 8(2) of the Convention, it is argued that the grounds for review presently applicable in this jurisdiction go beyond that test, and are therefore sufficient; particularly in light of the decisions in Sweetman v. An Bord Pleanála [2007] 2 ILRM 328 and Meadows v. Minister for Justice Equality and Law Reform [2010] 2 IR 701. It is submitted that judicial review provides an effective remedy, and that it is capable of taking into account issues of proportionality, as well as considering an individual’s rights under the Constitution and the Convention.

58. With regard to Mr. Gallagher, it is stated that paramountcy is afforded to the decision to issue a Demand for Possession, and a prompt application for judicial review lies to deal with any complaint that may arise, with the manner in which the decision to refuse the application for succession was made. Furthermore, the specific status of the Convention, having regard to both its nature as an international treaty and “its enactment into law through the Act of 2003” (sic), must be taken into account when applying it (see McD v. L & Ano’r (unreported, Supreme Court, 10th December, 2009) [2009] IESC 81), as well as the already substantial jurisprudence in this jurisdiction dealing with human rights. In this regard, the Council submits that it is clear that the learned High Court Judge wrongly sought to give direct effect to the Convention, in particular Articles 6 and 8 thereof, which is impermissible having regard, inter alia, to Article 29 of the Constitution.

59. The Council submits that the High Court was wrong to conclude that Mr. Gallagher’s right to fair procedures, under Articles 6 and 8 of the Convention and under Article 40 of the Convention, were not adequately protected. In particular the enactment of s. 11 of the Housing Act 1988, requiring the Council to provide a Scheme of Letting Priorities, and its preceding and amending legislative provisions, essentially give statutory effect to the requirement for fair procedures. Furthermore, s. 62 of the Act of 1966 has already been found to be compliant with Article 40 and the requirement of fair procedures in a series of decisions of the Irish Superior Courts (see The State (O’Rourke) v. Kelly (para. 15 supra); Hamilton (para. 45 supra); Fennell (para. 12 supra); Rock v. Dublin City Council (Unreported, Supreme Court, 8th February 2006); McConnell v. Dublin City Council (Unreported, Supreme Court, ex tempore, Murray C.J., 15th December, 2008); Leonard v. Dublin City Council (No. 1) [2007] IEHC 404; Leonard (No. 2) (para. 16 supra), and; The State (Kathleen Litzouw) v. Dublin Corporation [1981] I.L.R.M. 273)).

60. In any event, the Council submits, O’Neill J. was incorrect in proceeding to issue a Declaration of Incompatibility without it ever being argued in the case.

61. In relation to costs, the Council submits that since it is the State which is responsible for the promulgation of legislation, the Council should not be forced to bear the costs in a case to which the Attorney General is party, where the Declaration of Incompatibility is made in respect of legislation.

62. Finally, the Council contends that the analysis carried by the High Court in relation to the non-applicability of s. 86 of Deasy’s Act is correct.

63. The written submissions of Mr. Donegan were lodged on the 6th July, 2010. A number of heads are put forth which it is contended refute the arguments advanced by the Attorney General and the Council. First, it is the eviction which constitutes the interference, and it is the unchallengeable nature of the s. 62 application, which must result in the warrant for possession being incompatible with the Convention.

64. Secondly, it is clear from McCann (para. 35 supra) and Connors (paras. 12 and 13 supra) that procedural safeguards are required when eviction from one’s home is proposed by a public authority, particularly where there is a dispute as to facts. Connors was not in this regard confined to the vulnerable position of “gypsies”, particularly in light of McCann, which did not involve “gypsies” (see also Blecic, para. 14 supra).

65. It is submitted that judicial review ought not to be promoted as a primary remedy to cure failures in a statutory scheme, to provide sufficient safeguards in relation to fundamental rights. Matters of evidence, which would include the disputes of fact at issue here, and the weight to be attributed to them are errors within jurisdiction and are not reviewable by way of certiorari (see Keegan para. 47 supra). Such is distinct from issues of reasonableness or irrationality. Furthermore, as a matter of practicality, insistence on recourse to judicial review, as an operative remedy fails to take into account to the socio-economic position of most local authority tenants who are, generally, of limited financial means.

66. Mr. Donegan submits that the Council has incorrectly characterised the ratio of the High Court. It is not that judicial review is an inadequate remedy where Convention rights are involved, but rather where there is so severe an intrusion of Article 8 rights as eviction by the Council is, procedural safeguards are required. Where there is a dispute on the facts as to the justification for such intrusion, judicial review cannot offer adequate redress for an aggrieved tenant; some other mechanism, for example independent review, is required. Further, the High Court judgment does not impugn summary proceedings generally, only those in relation to s. 62 of the Act of 1966, which permit no defence once proofs are made out, which take no account of the reasons for the council in seeking possession, and which offer no independent review. It is noteworthy in this regard that private residential tenants are afforded far greater protection under the Residential Tenancies Act 2004.

67. With regards to the U.K. case law mentioned by the Attorney General and the Council, it should be noted that it is of course the ECtHR decisions that must be taken into account when interpreting and applying the Convention and not U.K. law, although the latter may of course illuminate the common law context of the Convention’s application. In any event, the U.K. regulatory framework for local authority tenants is notably different from the Irish provisions. In particular, in England the majority of local authority tenants occupy properties under “secure tenancies”, within the meaning of Part IV of the Housing Act 1985. Crucially, a local authority landlord is required to establish specified grounds for possession (set out in Schedule 2 of the Housing Act 1985), and to demonstrate to the County Court that it is reasonable to make such an order if sought (see Manchester City Council v. Pinnock [2010] 1 WLR 713). Even where a secure tenancy is terminated, eviction is not commenced, and instead a demoted tenancy comes into effect, which effectively provides a one year probationary period, on completion of which the secure tenancy is restored. Where possession proceedings are brought within that period, s. 143E of the Housing Act 1985 requires that reasons for such possession must be stated and that the local authority must inform the tenant of the right to request a review of the decision to serve notice of proceedings for possession. Such review must be carried out by a person not associated with the original decision and may involve an oral hearing. The U.K. system therefore, in fact, offers far greater protections than those under the Act of 1966. Notwithstanding this, the cases referred to in para. 15 supra, namely Kay, Qazi and Doherty, are simply not analogous with Mr. Donegan’s position.

68. Finally it is contended that the High Court decision is fully consistent with the other Irish authorities, such as Fennell, Leonard and Gallagher. With regards to the constitutional issues in Hamilton and State (O’Rourke) v. Kelly [1983] IR 58 these are not at issue in this case, and those cases did not in any event involve considerations of procedural fairness, rights or family rights.

69. The written submissions of Mr. Gallagher were lodged on the 29th June, 2010 in reply to the submissions of the Attorney General and the Council. He notes that at the heart of the litigation is the absence of any procedure to deal with factual disputes which arise. In this regard it is noted that both the Attorney General and the Council respond that judicial review is a sufficient safeguard in this regard. Issue is taken with the adequacy of such a remedy since, apart from the inability of judicial review to properly deal with conflicts of fact, most judicial review applications fail. Further such requirement would seem patently unfair especially for a class of persons with limited or exiguous means. What is absent, it is submitted, is a transparent process whereby a decision of the Council involving a conflict of facts, adverse to a person’s interest can be resolved in a transparent procedure with minimum fuss and delay.

70. In relation to the numerous judgments of the U.K. superior courts referred to by the Attorney General and the Council, Mr. Gallagher submits that, notwithstanding their somewhat unclear nature, these judgments stand in contrast to the recommendations of the recent report of the Joint Committee on Human Rights of the House of Lords and House of Commons entitled “Enhancing Parliament’s Role in relation to Human Rights Judgments” (HL Paper 85, 2010). This report preferred primary legislation to deal with the application of the ECtHR decisions in Connors and McCann, rather than repetitive litigation before the courts, and the consequential referrals to the ECtHR. Furthermore, in a recent judgment of the U.K. Superior Courts in Coombes v. Waltham Forest LBC and Secretary of State for the Communities and Local Government [2010] All E.R. 940, Cranston J. noted:-

“These Irish cases [Donegan and Gallagher] deserve close attention. There are, however, some important distinguishing features. For example, under s. 62 of the legislation it seems that once a notice to quit expires the matter moves inexorably to a warrant for possession if formal proofs are in order. Moreover, judicial review before the Irish courts does not seem to enable any resolution of disputed facts. Under Gateway (b) of Lambeth London BC v Kay [2006] 2 AC 465 and Doherty v Birmingham City Council [2009] AC 267 an occupier is able to raise factual matters in an action under section 3 of the Protection from Eviction Act of 1997 in the manner outlined earlier. The key difference is the obvious point that – unlike this court – the Irish High Court is not bound by the decisions of the House of Lords.”
In this regard the learned judge continued that notwithstanding obvious conflicts between the jurisprudence of the ECtHR and the decisions of the House of Lords, it was undoubtedly bound to apply the latter, and therefore could not make a declaration of incompatibility.
71. Mr. Gallagher submits that the U.K. legislation which governs similar situations regarding local authority tenants, namely the Housing Act 1985, is significantly different from the Act of 1966 in this jurisdiction. In particular, in the U.K. the County Court is given jurisdiction to deal with recovery of possession from the outset, and may make an order for possession on the grounds set forth in the legislation, namely “if it considers it reasonable” (see s. 82 and schedule 2 of the Housing Act 1985).

72. Notwithstanding this, Mr. Gallagher cross-appeals the High Court judgment on the ground that s. 62 of the 1966 Act incorporates the provisions of ss. 86 to 88 of Deasy’s Act. In particular this incorporation provides a wider entitlement to show cause before the District Court, in the manner previously interpreted in R (Quinn) v. Justices of Tipperary (1883) 12 L.R. Ir. 393. In this regard reliance is also placed on the Supreme Court decision in Kerry County Council v. McCarthy [1997] 2 I.L.R.M. 481. The legal issue in that case was whether a summons under s. 62 of the 1966 Act should be issued by a judge of the District Court rather than a District Court Clerk, with reliance on s. 88 of Deasy’s Act. This case, Mr. Gallagher contends, is consistent with a defendant making his case by way of defence of the summons, and is authority for the proposition that s. 86 of Deasy’s Act should be taken into account when considering the jurisdiction conferred by s. 62 of the 1966 Act. Should this interpretation find favour with this court, it is stated, there would be no requirement for a Declaration of Incompatibility under the 2003 Act.

73. Mr. Gallagher disputes the Council’s contention that a housing authority tenant is in a better position compared to a similarly situated private tenant. In particular he notes that the recently enacted Housing (Miscellaneous Provisions) Act 2009, dealing with anti-social behaviour, provides for a dispute resolution and for supervision over a new category of local authority lettings, through private third party owners via the Private Residential Tenancies Board, under the Residential Tenancies Act 2004, which would resolve any factual conflicts in the context of such a letting. In contrast, where the letting only involves the local authority no equivalent procedure exists for dealing with conflicts of fact.

74. In replying to the submissions of the Council, Mr. Gallagher notes that he was set to be summarily dispossessed of a home in which he has lived for virtually all of his life; a period in excess of 42 years. This decision was not made following a hearing on the merits, but as a result on an internal ad hoc decision by the Council. In this regard, therefore, no procedural safeguards were afforded. No issue is taken with the Council’s Scheme of Letting Priorities itself. The issue is rather one of fair procedures.

75. As to the specific submission put forth by the Council, Mr. Gallagher first submits that the Council’s reliance upon McD v. L (para. 58 supra) as authority for the proposition that the Convention is not directly applicable is misplaced. That case is distinguishable from the present case as Mr. Gallagher is not asserting stand-alone rights under the Convention, and is not seeking the direct application of those articles to national legislation. Instead Mr. Gallagher seeks a Convention compatible interpretation of s. 62 of the Act of 1966, and complains that the dispute and conflict of facts with the Council have not been determined by an independent impartial tribunal. This is in accordance with the Act of 2003, in particular ss. 2 and 4.

76. In relation to the appropriateness of the Declaration of Incompatibility under s. 5 of the Act of 2003, it is noted that, notwithstanding that no request was made for such a declaration, it is clear from the wording of s. 5 that a declaration made be made in any proceedings, including, it is contended, in proceedings by way of case stated, before the High Court or Supreme Court, and that such a declaration may be made by the court of its own volition.

77. In relation to the Council’s submission that, irrespective of whether Mr. Gallagher had actually lived in the premises for two years prior to his mother’s death, he would not have been entitled to a tenancy in any event since he failed to meet the condition in para. 1.7 of the Scheme of Letting Priorities that he was not “included in the family household details for rent assessment purposes”, he notes that this second requirement is not mandatory in nature. The following sentence states that “[g]enerally no application will be considered where this condition is not complied with”. Particular attention is drawn to the word “generally”, which rather than indicating an absolute condition would be consistent with a discretion on the part of the Council with regards to the presence on the rent account in the context of an application to succeed to a tenancy. The factual dispute at issue in the present case is therefore entirely relevant to whether Mr. Gallagher was entitled to succeed to his mother’s tenancy.

78. With regards to the relevant ECtHR authorities, it is submitted that in the present case the absence of transparent procedures to resolve conflicts of fact or a merits review involving the Council and the occupant of the premises, particularly taking into account the proportionality of any such measures taken against the occupant, are in breach of Article 6, 8 and 13 of the Convention. In this regard reliance is placed on the cases of Connors (para. 13 supra), McCann (para. 35 supra), Bryan v. United Kingdom (1996) 21 EHRR 342, and Doran v. Ireland (2006) 42 EHRR 13.

79. Mr. Gallagher also disputes the grounds raised by the Attorney General, in particular denying that the High Court judgments give rise to a floodgates argument. If the situation is remedied so as to afford individuals with appropriate procedural safeguards at the decision-making stage, the summary process would be unobjectionable.

80. As to the case law which is identified to argue that the issue of the constitutionality of s. 62 of the 1966 Act has been determined, inter alia, State (O’Rourke) v. Kelly (para. 12 supra), this case dealt with a net constitutional challenge on the separation of powers.

81. Mr. Gallagher notes that proceedings have already been lodged before the ECtHR in his case (Application No. 42717/09, Gallagher v. Ireland), and that court has requested to be informed of any further developments in these proceedings, although no further action will be taken pending the outcome of the present Supreme Court action.

82. Finally, with regards to the questions posed in the consultative case stated (see para. 26 supra), Mr. Gallagher contends that the answers should be:

Question 1: Yes

Question 2: On a true construction of s. 62 of the Act of 1966, incorporating ss. 86 to 88 of Deasy’s Act, a District Court Judge has jurisdiction to explore the merits of the procedures followed where disputed facts are present and raised to show why possession should not be granted, either in reliance of Articles 6, 8 or 13 of the Convention or otherwise.

Question 3: In appearing to a summons under s. 62 of the Act of 1966, incorporating ss. 86 to 88 of Deasy’s Act, a defendant is entitled in the District Court to address the merits of the procedure followed by the Council in deciding to seek a warrant for possession, including the merits of the underlying dispute, where disputed facts arise for the purposes of showing cause why a warrant for possession should not be granted, either in reliance on Articles 6, 8 or 13 of the Convention or otherwise.

Question 4: Yes.
The Decision:
83. There is considerable overlap in the law in relation to the two cases presently under appeal. The exception to this is the issue raised on behalf of Mr. Gallagher in relation to the application of s. 86 of Deasy’s Act. In addressing the issues in these cases, I propose to consider, in this order, the following; (i) s. 62 of the Act of 1966 and the case law on it, (ii) the impact, if any, which s. 2 of the Act of 2003, have had on its meaning, (iii) Article 8 of the Convention and relevant ECtHR case law on it, (iv) U.K case law, (v) sufficiency of judicial review, (vi) Articles 6, 13 and 14 of the Convention, (vii) conclusion on Article 8, (viii) s. 5 of the Act of 2003, in the context of appropriate orders, if any, and (ix) disposition.
Statutory and Convention Provisions:
84. As is now abundantly evident, s. 62 of the Act of 1966 is the central focus in this case. In reciting its terms I have ignored the amendment made by s. 13 of the Housing Act 1970 as not being materially relevant. It reads as follows:

“(1) In case,
(a) there is no tenancy in—

(i) a dwelling provided by a housing authority under this Act,
(ii) any building or part of a building of which the authority are the owner and which is required by them for the purposes of this Act, or

(iii) a dwelling of which the National Building Agency Limited is the owner,

whether by reason of the termination of a tenancy or otherwise, and

(b) there is an occupier of the dwelling or building or any part thereof who neglects or refuses to deliver up possession of the dwelling or building or part thereof on a demand being made therefor by the authority or Agency, as the case may be, and
(c) there is a statement in the demand of the intention of the authority or Agency to make application under this subsection in the event of the requirements of the demand not being complied with,

the authority or Agency may (without prejudice to any other method of recovering possession) apply to the justice of the District Court having jurisdiction in the district court district in which the dwelling or building is situate for the issue of a warrant under this section.
(2) …

(3) Upon the hearing of an application duly made under subs. (1) of this section, the justice of the District Court hearing the application shall, in case he is satisfied that the demand mentioned in the said subs. (1) has been duly made, issue the warrant.
(4) The provisions of ss. 86, 87, and 88 of the Act of 1860 shall apply in respect of the issue of a warrant under this section subject to the modification that where as respects an application under subs. (1) of this section, the name of the occupier of a dwelling or building or part thereof cannot by reasonable enquiry be ascertained, a summons under the said s. 86 may be addressed to “the occupier” without naming him, and the warrant when so issued shall have the same effect as a warrant under the said s. 86.

(5) In any proceedings for the recovery of possession of a dwelling or building or part thereof mentioned in subs. (1) of this section, a document purporting to be the relevant tenancy agreement produced by the body by whom the proceedings are brought shall be prima facie evidence of the agreement and it shall not be necessary to prove any signature on the document and in case there is no tenancy in the premises to which the proceedings relate by reason of the termination of a tenancy by notice to quit and the person to whom such notice was given is the person against whom the proceedings are brought, the following additional provisions shall apply:

(a) any demand or requirement contained in such notice that the person deliver up possession of the said premises to the authority or the Agency, shall be a sufficient demand for the purposes of para. (b) of the said subs. (1); and
(b) any statement in the said notice of the intention of the authority or the Agency to make application under subs. (1) of this section in respect of the premises shall be a sufficient statement for the purposes of para. (c) of the said subs. (1).

(6) ….”
85. Sections 2, 3 and 5 of the 2003 must also be outlined:
“2.— (1) In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.
(2) This section applies to any statutory provision or rule of law in force immediately before the passing of this Act or any such provision coming into force thereafter.

3.— (1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.

(2) A person who has suffered injury, loss or damage as a result of a contravention of subs. (1), may, if no other remedy in damages is available, institute proceedings to recover damages in respect of the contravention in the High Court (or, subject to subs. (3), in the Circuit Court) and the Court may award to the person such damages (if any) as it considers appropriate.

(3) The damages recoverable under this section in the Circuit Court shall not exceed the amount standing prescribed, for the time being by law, as the limit of that Court’s jurisdiction in tort.

5.— (1) In any proceedings, the High Court, or the Supreme Court when exercising its appellate jurisdiction, may, having regard to the provisions of s. 2 , on application to it in that behalf by a party, or of its own motion, and where no other legal remedy is adequate and available, make a declaration (referred to in this Act as “a declaration of incompatibility”) that a statutory provision or rule of law is incompatible with the State’s obligations under the Convention provisions.

(2) A declaration of incompatibility—

(a) shall not affect the validity, continuing operation or enforcement of the statutory provision or rule of law in respect of which it is made, and
(b) shall not prevent a party to the proceedings concerned from making submissions or representations in relation to matters to which the declaration relates in any proceedings before the European Court of Human Rights.

(3) The Taoiseach shall cause a copy of any order containing a declaration of incompatibility to be laid before each House of the Oireachtas within the next 21 days on which that House has sat after the making of the order.
(4) Where—

(a) a declaration of incompatibility is made,
(b) a party to the proceedings concerned makes an application in writing to the Attorney General for compensation in respect of an injury or loss or damage suffered by him or her as a result of the incompatibility concerned, and

(c) the Government, in their discretion, consider that it may be appropriate to make an ex gratia payment of compensation to that party (“a payment”),

the Government may request an adviser appointed by them to advise them as to the amount of such compensation (if any) and may, in their discretion, make a payment of the amount aforesaid or of such other amount as they consider appropriate in the circumstances.

(5) In advising the Government on the amount of compensation for the purposes of subs. (4), an adviser shall take appropriate account of the principles and practice applied by the European Court of Human Rights in relation to affording just satisfaction to an injured party under Article 41 of the Convention.”
86. Finally, Articles 6 and 8 of the Convention must be noted:-
“Article 6
Right to a fair trial

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …

2. …

3. …

Article 8

Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

87. In addition, Article 13 provides for the right to an effective remedy and Article 14 prohibits discrimination.
The Housing Authority: Section 62 of the Act of 1966 and relevant caselaw pre and post Act of 2003

88. Dublin City Council is a local authority for the purposes of the Local Government Acts 1925/2001, as amended. In that general capacity it has many functions, duties and responsibilities. When exercising those in the context of housing, including the provision of housing accommodation and related matters, it is known as a “Housing Authority”, having been designated as such, under and by virtue of the provisions of the Housing Act 1966. That Act, although amended, altered and changed on multiple occasions since its enactment, remains the cornerstone of the public housing policy of the State. Under its provisions, a housing authority is obliged to provide housing accommodation for several categories of persons who, for whatever reason, are unable to provide accommodation for themselves. To perform this function it is entrusted with the responsibility of establishing and maintaining a housing stock and where necessary to improve, increase and upgrade that, when required. It has many other powers, either mandatory or discretionary, to supplement this core function.

89. An integral requirement in the performance of this responsibility is the establishment of what is termed, a “Scheme of Letting Priorities”, as required by s. 60 of the Act of 1966. Under this provision, such a Scheme, which must be regularly reviewed, contains the rules by which the housing needs of all persons within its functional area, to whom it owes a responsibility, are assessed and prioritised. Having completed this exercise, its housing stock is then distributed and allocated according to the Scheme. It is accepted and, in the case Mr. Gallagher so found by the Judge of the District Court, that the rules governing, inter alia, succession to a tenancy are to be found within the Scheme.

90. In supporting the performance of these functions, the Oireachtas has provided a special procedure for the recovery of possession of let dwellings, in the form of s. 62 of the Act of 1966. That provision is quoted in full at para. 84 of this judgment.

91. If untouched by authority, and in applying the normal interpretive rules, it would appear from its provisions that, once the requirements specified in subs. (1) of the section are established, a District Judge before whom an application for possession is made, has no choice or discretion in that regard. Once satisfied as to such conditions, the requested warrant must issue.

92. These conditions are:-

(i) that the dwelling is provided by the housing authority: such can be established by certificate under s. 118 of the Act of 1966;
(ii) that no tenancy exists in respect of such dwelling: whether by effluxion of time, or by termination for breach or otherwise, it matters not;

(iii) that notwithstanding a demand for possession, the dwelling remains occupied by the individual to whom the demand is addressed, and;

(iv) that within the demand there is contained a statement of the housing authority’s intention to invoke s. 62 of the Act in the event of possession being refused or denied.

Once these requirements have been established to the satisfaction of the District Court, the Order must follow.
93. It follows from this construction of the section that an occupier has no right or entitlement to raise any defence to such an application, other than by way of challenging the housing authority on these formal proofs. In addition, the absence of judicial discretion means that the personal circumstances of such occupier must be disregarded as being irrelevant; equally so with questions regarding the reasonableness or fairness of making the Order: these simply have no part in this statutory procedure. It is not surprising therefore, to find that the section has attracted much judicial attention.

94. In State (O’Rourke) v. Kelly (cited at para. 12 supra) the constitutionality of s. 62(3) of the 1966 Act was challenged, on the basis that its mandatory nature constituted an unwarranted intrusion into the judicial domain. The Supreme Court, in rejecting this challenge, said at p. 61 of the report:-

“It will be seen that it is only when the provisions of subs (1) of s. 62 have been complied with and the demand duly made to the satisfaction of the District Court that he must issue the warrant. In other words, it is only following the establishment of specified matters that the subsection operates. This is no different to many of the statutory provisions which, on proof of certain matters, make it mandatory on a court to make a specified order. Such legislative provisions are within the competence of the Oireachtas. The court, therefore, rejects the complaint that the section is invalid having regard to the provisions of the Constitution…”
95. In Hamilton (para. 45 supra) an argument was advanced that by reason of the inclusion of the word “duly”, on two occasions within subs (3) of s. 62 of the Act of 1966 (para. 84), the District Court could embark upon a wide ranging review of matters, such as whether the plaintiff was in breach of its statutory housing responsibility to the defendant, as a person to whom they owed a legal duty. Geoghegan J. held that such an issue was not one for the District Court under s. 62 of the 1966 Act, but rather had to submit itself to the remedy of judicial review. He went on however, to justify the summary process provided for by that section, by stating at p. 493:-

“…it would seem to me to be both reasonable and constitutional that there would be available to a housing authority a rapid method of recovering possession of any one dwelling provided by it without having to give reasons for so doing. The local authority has to consider its overall management of housing and it owes an obligation to all the persons in need of housing as well as to any one individual. In that context it is in order to be entitled to plan its arrangements for providing houses…”
96. The above cases were considered by the Supreme Court in Fennell (para. 12 supra), where the real issue was one of retrospection i.e. did the Act of 2003 have any affect on events occurring before the statute became operative? In the course of his judgment Kearns J., speaking for the court, reaffirmed the traditional understanding of the section and re-echoed the views expounded in Hamilton as to the justifying reasons for the summary nature of its provisions. Therefore, subject to what follows, there cannot be any doubt as to the section’s proper interpretation.
97. Interestingly, although evidently speaking obiter, the learned judge in Fennell at p. 614 of the report went on to say:-

“it may also be seen that the summary method whereby possession of such dwellings may be recovered, notably in circumstances where the tenant is regarded as having through misbehaviour brought about the termination of his tenancy and thus forfeited the right to any alternative accommodation, may arguably infringe certain Articles of the Convention, and in particular, Articles 6, 8 and 13 thereof and also Article 1 of the Protocol 1 (Protection of Property) of the Convention.”
Of course, that is the precise issue in Donegan size=”2″ face=”Verdana”> and has a clear parallel to Gallagher.
Impact of the Act of 2003 on the meaning of section 62(3) of the Act of 1966

98. It is unclear with what force it is submitted that by virtue of s. 2 of the Act of 2003 the interpretation of the housing provision at issue, can be varied; in particular varied so that the District Court on hearing a possession application, could adjudicate on issues, including those of fact, which are extraneous to the specified requirements of the section, and depending on its findings, could as a result, refuse to make the order as sought. In other words, in the case of Mr. Donegan, to have the factual conflict resolved, and if decided in his favour, to have a discretion to refuse the order on that ground; in the case of Mr. Gallagher to resolve the residency dispute, and again if decided in his favour, to have the same discretion, despite the agreed position on the rent issue. In this regard it is said firstly, that by virtue of s. 2 of the Act of 2003, the provisions of s. 62(3) are capable of being read in this expansive way and secondly that such a result may also follow by reason of subs. (4) of the Act of 1966, which applies ss. 86, 87 and 88 of Deasy’s Act to its provisions.

99. Dealing firstly with the latter point, it should be noted that s. 86 of Deasy’s Act is the only provision of those mentioned, which could have any relevance to this issue; moreover, only that part of s. 86, as relates to the issue of a warrant, is incorporated. Therefore, it has very much a restricted application.

100. Section 86, which is quoted in full at pp. 7 to 8 of the High Court judgment, deals with the recovery of possession of certain types of property, envisaging the possibility of two applications being made to what is now, the District Court. In the first instance, possession may be sought by way of an application in which the occupier is called upon to “show reasonable cause why possession of the said premises should not be delivered up” (emphasis added). As a result of this wording it is suggested that scope exists for a “merits argument”. Secondly, having obtained such order, but not possession, the landlord is empowered under the section, to return to the Court seeking a warrant, which if granted, would authorise the sheriff to effect vacant possession. The phrase herein underlined is not repeated in that part of the section dealing with the warrant. Thus, even the argument itself may not be available, if such reading of s. 86 is correct.

101. If, however, the call to “show cause” is part of s. 62 of the Act of 1966, a question arises as to its meaning. Dublin Corporation v. McDonnell [1946] I.R. Jur Rep 18, when dealing with the phrase “to show reasonable cause” under s. 15(3) of the Summary Jurisdiction (Ireland) Act 1851, by virtue of which possession of a public authority dwelling was sought, held that, this phrase could have no wider import than one permitting an occupier to avail of such defences as were known to law, but no others. In particular such phrase, which if anything is more extensive than that used in s. 86 of Deasy’s Act, did not confer any judicial discretion on such an application. If, therefore, this interpretation should apply to s. 62 of the Act of 1966, it would mean that any defence under the section is restricted to that which is referable to what has been described as the “formal proofs” required by subs. (1). The trial judge agreed with this view as I do; accordingly, for these reasons s. 86 of Deasy’s Act cannot have any effect on the interpretation of s. 62 of the Act of 1966.

102. Finally in this context, I can see nothing in R (Quinn) v. Justices of Tipperary (para. 72 supra) which could dislodge this suggested interpretation of s. 62.

103. The second aspect of this matter is whether s. 2 of the Act of 2003, in and of itself, when applied to s. 62(3) of the 1966 Act, achieves a like or similar result. That section (para. 85) obliges a court when interpreting and applying any statutory provision, passed before or after its enactment, to do so, in so far as possible, in a manner compliant with the State’s obligations under the Convention. However, the court when undertaking this exercise is “subject to the rules of law relating to such interpretation and application”. Such would include both the common law and statute law.

104. A question thus arises as to whether, and if so to what extent, the provisions of s. 2 of the Act of 2003, have affected the meaning or application of these rules; or to put the matter in another way, does s. 2 introduce a new rule of interpretation in this jurisdiction? For the reasons given at para. 106 infra, I do not consider it necessary to analyse this issue in any detail, but I do wish to make the following observation.

105. It is quite clear that the Oireachtas has directed that every statutory provision or rule of law should be given a Convention construction if possible; that is a construction compatible with the State’s obligations under the Convention. Therefore if such a construction is reasonably open it should prevail over any other construction, which although also reasonably open, is not Convention compliant. Even in cases of doubt, an interpretation in conformity with the Convention should be preferred over one incompatible with it. However, this task must be performed by reference to the rules of law regarding interpretation. These rules, have been variously described in many cases over the years such as McGrath v. McDermott [1988] I.R. 258 and Howard v. Commission of Public Works [1994] 1 I.R. 101.

106. The reason why it is not necessary to further explore the relationship between the provisions of s. 2 of the Act of 2003 and the rules of interpretation and application referred to in this section, is that if a violation of Article 8 should be found to exist, the only manner of rendering s. 62(3) of the Act of 1966 compatible with the Convention is to read into it a facility, accompanied by attendant supports, which has the capacity to deal with the applicants’ complaints, as described at para. 98 supra. Such result could not be achieved by any manner of permissible interpretation. Therefore, at least for the purposes of this case, s. 2 of the Act of 2003 has no affect on s. 62(3) of the Act of 1966. Consequently, in accordance with cases such as State (O’Rourke) v. Kelly, Hamilton and Fennell, it remains the position that, on a s. 62 application, any challenge, intra-provision which can be made, is restricted to the conditions specified in subs (1) thereof. Therefore, neither the position of Mr. Donegan nor that of Mr. Gallagher is enhanced by reason of the Act of 2003.
ECtHR Jurisprudence and Article 8:
107. Article 8 of the Convention has many aspects to it, but in this case we are concerned only with the “right to respect” for one’s home and this in the broad context of a landlord and tenant relationship. It is clear that such a right does not give a person a right to a home, or to have his/her housing needs supplied by a public authority. Para. 1 of the Article does not arise for consideration in either of the instant cases. Paragraph 2 states that a public authority shall not interfere with the exercise of the right except:

i) as in accordance with law:
ii) as is necessary in a democratic society; and,

iii) in pursuance of a legitimate aim.

For the purpose of the Article, “home” has an autonomous meaning (Buckley v. United Kingdom (1996) 23 EHRR 101 at para. 63 refers to “the existence of sufficient and continuous links” as being a prerequisite for a “home”), with the domestic legal status of the occupier being irrelevant. In the decisions of the ECtHR, which I propose to look at, all had in common a concession or a finding, that the property in question was such a “home”, that the act or threatened act amounted to an interference by a public authority, that such was in accordance with domestic law and that the aim of such interference was a legitimate one, as measured by reference to the provisions of the second para. of Article 8. The issue in each case was thus narrowed to whether the interference was “necessary in a democratic society”. This requirement has two aspects to it, one of substance and one of procedure (para. 49 of McCann). It is the latter which this judgment is concerned with, as in the instant cases, the area of concern, under the Article 8 challenge, is confined to this net point.
108. An interference will be considered “necessary in a democratic society”, assuming a legitimate aim, if it answers a pressing social need and in particular if it is proportionate to the legitimate aim pursued (para. 81 of Connors). These concepts were considered in some depth and applied in Connors, Blecic and McCann which I now propose to consider.
Connors:
109. In Connors (cited at para. 13 supra), Mr. Connors and family, after sixteen years living on a gypsy site as licensee to a local authority, was served with a notice to quit in January, 2000. This step had, as its immediate background, complaints of unacceptable behaviour on the part of his family and their guests, which was said to constitute a breach of the licence conditions. These allegations were strenuously denied by the applicant, who unsuccessfully sought to judicially review proceedings, which the council took seeking possession of the site. In the face of such denials the complaints of misbehaviour were dropped: instead the council relied on its right to terminate on notice only, that is, without underlying reasons. This was in accordance with English law and so the requested order was granted. Therefore, the factual dispute giving rise to that determination was never ventilated.

110. In the ECtHR the issue was one of necessity and proportionality, in accordance with the description of these terms as given at para. 108 supra. The court, having considered what the margin of appreciation permits and demands, reflecting as it should, “the nature of the Convention right, its importance for the individual, the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions”, went on to say at para. 83:-

“The procedural safeguards available to the individual will be especially material in determining whether the respondent state has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the court must examine whether the decision making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8.” (see Buckley; Chapman v. United Kingdom).”
Thus, the central issue was whether the legal framework, within which possession of the site could be recovered from the Connors family, provided sufficient procedural protection to safeguard their Article 8 rights.
111. The Court, in its consideration of the issue, looked at a number of matters but essentially at the nature of the right, the procedural safeguards such as they were, the position of gypsies who as a minority attracted the positive obligation under Article 8(1), and their disadvantaged position of living on a public site when compared to those living on a private site. It identified the family’s real complaint as being unable to have determined by an independent body, the clear factual dispute regarding the anti-social acts complained of, and those responsible for them. It was not being alleged that the council had committed a breach of duty or had carried out an unlawful act. Therefore in such circumstances, the court was not impressed by the respondent’s insistence that judicial review was an adequate remedy. At para. 92 it disposed of this argument by stating:

“While therefore the existence of judicial review may provide a valuable safeguard against abuse or oppressive conduct by local authorities in some areas, the court does not consider that it can be regarded as assisting the applicant, or other gypsies, in circumstances where the local authority terminates licences in accordance with the applicable law.”
112. Its conclusion was thus stated:-
“However, even allowing for the margin of appreciation which is to be afforded to the State in such circumstances, the Court is not persuaded that the necessity for a statutory scheme which permitted the summary eviction of the applicant and his family has been sufficiently demonstrated by the government. The power to evict without the burden of giving reasons liable to be examined as to their merits by an independent tribunal has not been convincingly shown to respond to any specific goal or to provide any specific benefit to members of the gypsy community.” (para. 94)
Further the family’s eviction:
“was not attended by the requisite procedural safeguards, namely the requirement to establish proper justification for the serious interference with his rights and consequently, cannot be regarded as justified by a “pressing social need”, or proportionate to the legitimate aim being pursued.” (para. 95).
Accordingly, there had been a violation of Article 8.

Blecic:
113. A case which is frequently contrasted with Connors, is that of Blecic (cited at para. 14 supra), where the court reached a contrary conclusion, giving primacy to the margin of appreciation in the following circumstances. The applicant had been a protected tenant of a public authority flat for over 40 years in Zadar. Under the law the tenancy could be terminated, if without justifying reasons, she was absent from the flat for a continuous period of six months or more. She was so absent but claimed for good reason. By the time she had returned the landlord public authority had instituted proceedings seeking possession.

114. The sole issue, as with Connors, was whether the interference was necessary in a democratic society, in that did it answer a pressing social need and was it proportionate to the aim of recovering possession of such protected units which remained unoccupied over such period. The court was satisfied that the national authorities had remained within the margin of appreciation in that her case was reviewed at three court levels, commencing at first instance where she was provided with an oral hearing and where she was assisted by legal counsel. Whilst the appellate process involved only a review of the case file, nonetheless it permitted further representations to be made on her behalf: therefore when looked at collectively, the safeguards available did not fall short of affording due respect for her Article 8 rights.
McCann:
115. The final case of immediate relevance is McCann (cited at para. 35 supra). In 2001, because of a marriage breakdown, the applicant’s wife and their son moved out of the family home, which she had occupied jointly with her husband as secure tenants for the previous two years. When Mr. McCann was forced to leave the house under court order, his family returned only to depart again, when further violence was threatened. Eventually the wife and the children of the marriage were re-housed elsewhere by the local authority.

116. Sometime after these events, the applicant, who had spent much money in renovating the house, moved back in, but finding it too large for his needs, applied to downsize. On the same day as this application was made, a housing officer visited Mrs. McCann and had her sign a Notice to Quit, the effect of which was not only to close the tenancy but also to extinguish the husband’s right to live in the house and his right to pursue the exchange which he had sought. She tried to withdraw the Notice to Quit but without legal effect. A Possession Order was thereafter sought and eventually granted.

117. The ECtHR took time to consider some U.K. authorities, such as Qazi and Kay (cited at para. 15 supra). On the key question of whether the eviction was proportionate to the aim and thus “necessary in a democratic society”, the court repeated what it had said at paras. 81 – 83 of Connors and explicitly rejected the suggestion that Connors was special as involving gypsies and therefore confined to its own facts. Given the extreme form of interference with the right to respect for one’s home, which eviction is, the court at para. 50 of the judgment said:-

“…The loss of one’s home is the most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right of occupation has come to an end.”
118. The court was critical of the local authority in by-passing the statutory scheme, which if it had been used to seek possession, would have allowed the applicant to have the reasons for his wife’s departure from the home looked at, as well as having his personal circumstances considered, which included the need to provide accommodation for his children on visitation occasions. By having Mrs. McCann sign the Notice to Quit in the manner which she did, the local authority failed to have any regard for her husband’s Article 8 rights. Moreover the County Court from which the possession order was granted could not consider the issues which he wished to have addressed, save in exceptional circumstances, which did not arise.
119. At para. 53, the court once more looked at judicial review and said:-

“…the “procedural safeguard” required by Article 8 for the assessment of the proportionality of the interference were not met by the possibility for the applicant to apply for judicial review and to obtain a scrutiny by the courts of the lawfulness and reasonableness of the local authority’s decision. Judicial review procedure is not well adapted for the resolution of sensitive factual questions which are better left to the County Court responsible for ordering possession. In the present case the judicial review proceedings, like the possession proceedings, did not provide any opportunity for an independent tribunal to examine whether the applicant’s loss of his home was proportionate under Article 8(2) to the legitimate aims pursued.”
Therefore, there was a violation also in this case.
U.K. Case Law:
120. A number of U.K. cases have been referred to which deal with the jurisprudence of the ECtHR, in particular Connors and McCann, and seek to apply it in a national context. These cases include: Qazi; Kay; Price; and, Doherty (cited at para. 15 supra). The Court of Appeal, per Carnwath L.J., in Doherty provided a useful factual summary of the aforementioned cases, and compared them to the ECtHR’s decisions in Connors.

121. Whilst the court was invited to consider such cases and to compare the legal situation as it is in the U.K. to that which prevails in this jurisdiction, it does not consider it necessary or desirable to do so, as irrespective of any legal differences which may exist, the facts of the U.K. cases are clearly distinguishable from the facts in the instant cases and accordingly, for that reason no assistance can be derived from such authorities. Moreover, the challenge of both Mr. Donegan and Mr. Gallagher is specifically focused on Article 8 of the Convention and on the ECtHR case law in that regard. Therefore, Connors and McCann are the primary source of application to the instant appeals. Consequently, any review of the judgments last mentioned must await a more appropriate case.
Adequacy of Judicial Review:-
122. The availability of any legal means by which disputes may be resolved, in a domestic context, is a factor to be considered when assessing the adequacy of the safeguards demanded by Article 8 of the Convention. The only one of any relevance in this jurisdiction is that of judicial review. On behalf of both the Council and the Attorney General it is submitted, with varying degrees of assertiveness, that such is an adequate means by which the issues of concern, as pleaded in these cases, can be addressed.

123. In considering this matter, it is immaterial whether the primary aim or principal focus of the remedy lies elsewhere; even therefore, if judicial review is directed to such matters as ultra vires, the control of statutory and other powers or duties, discretionary or otherwise, it would not matter. Once there is a mechanism available within the process which is adequate and which affords fairness and independence, such will suffice for Article 8 purposes.

124. The Council argues that both Mr. Donegan and Mr. Gallagher could have legitimately challenged the decision of the Council to serve a Notice to Quit on several grounds such as its failure to make adequate inquiries, its consideration of extraneous matters or its failure to consider relevant ones. All, or at least most of these examples may indeed be capable of attracting judicial review but none of them relate to the issue in Mr. Donegan’s case or the residency issue in Mr. Gallagher’s case. What has been lost sight of in this submission is the very simple and straightforward conflict which requires resolution. Was Mr. Donegan’s son a drug addict or a drug pusher? It is purely a question of fact, simple, I even dare say to resolve. Was Mr. Gallagher residing with his mother for the period in question or was he not? Again, a rather straightforward matter. It is therefore difficult to see how a remedy like judicial review, modelled in the manner in which it is, could in any way make a decision or reach a conclusion on these issues. At most, it could set aside a decision unlawfully made but such would leave quite unresolved the basic dispute. It could never, of itself, substitute its own findings of fact for those made by a decision-maker. Therefore, judicial review is not, in any meaningful sense, a forum to which recourse can be had in the presenting circumstances.

125. Equally so with regard to any challenge based on unreasonableness. To succeed, an applicant would have to establish that the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense or that the decision-maker had no relevant material with which to support its decision. See Keegan (para. 47 supra) and O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39. Again, even if such could be engaged the underlying dispute remains unresolved.

126. In Tsfayo v. United Kingdom (2009) 48 EHRR 18, the ECtHR examined the inadequacy of judicial review as a means of satisfying the requirements of Article 6 where there was a conflict of fact (it had previously done so in Connors and McCann in the context of Article 8). At para. 48 of its judgment the court stated:

“The applicant had her claim refused because the ‘Review Board’ did not find her a credible witness. Whilst the High Court had power to quash the decision if it considered, inter alia, that there was no evidence to support the ‘Board’s’ factual findings, or that its findings were plainly untenable, or that the Board had misunderstood or been ignorant of an established and relevant fact…it did not have jurisdiction to rehear the evidence or substitute its own views as to the applicant’s credibility. Thus, in this case, there was never the possibility that the central issue would be determined by a tribunal that was independent of one of the parties to the dispute.”
In my view this summary in a general sense reflects the position as it exists in this jurisdiction.
127. As was noted by Laffoy J. in Donegan size=”2″ face=”Verdana”>, a person’s Article 8 rights will be infringed when a warrant for possession is obtained by the Council in proceedings before the District Court under s. 62 of the Act of 1966 and when that warrant is executed; I would agree with this position. Nonetheless, I would not make a conclusive determination on whether the Notice to Quit itself, infringes upon a person’s Article 8 rights; this point is ultimately not at issue in the within proceedings.

128. When considering the adequacy of judicial review as a sufficient safeguard in this context it must therefore be done with reference to the s. 62 application; the question is whether judicial review will provide a sufficient safeguard against an interference, by virtue of the provisions of that section. In this regard it is patently clear that it could not. As already noted, the function carried out by the District Court is merely to ensure that the requirements of subs (1) of the section have been established, and if so, to issue an order under that section. Any judicial review of this decision, save possibly where the District Court Judge patently failed to comply with the section itself, would be bound to fail. Certainly the court, on judicial review, could not enter into an assessment of the facts or personal circumstances behind the application, such matters are not even within the consideration of the District Court Judge. Judicial review of a s. 62 application could in no way be capable of resolving a conflict of fact between the Council and a person subject to the application.

129. Therefore, I do not believe that the remedy of judicial review gives any comfort in the context of the State’s obligation to show respect for the right to one’s home within Article 8 of the Convention.

130. The Council have submitted that the Supreme Court decision in Meadows (para. 57 supra) has notably changed the scope of judicial review, and that therefore, notwithstanding that such remedy may not have been a sufficient safeguard in the past, it is now clear that it is. In particular, it is argued that Meadows has incorporated a consideration of proportionality into judicial review, where an administrative decision bears on constitutional or Convention rights.

131. In this regard the decision of Murray C.J. at p. 723 should be noted:-

“In examining whether a decision properly flows from the premises on which it is based and whether it might be considered at variance with reason and common sense I see no reason why the Court should not have recourse to the principle of proportionality in determining those issues. … Application of the principle of proportionality is in my view a means of examining whether the decision meets the test of reasonableness, I do not find anything in the dicta of the Court in Keegan or O’Keefe which would exclude the Court from applying the principle of proportionality where it could be considered relevant.”
It is clear from this statement, that although some extension of judicial review for reasonableness is envisaged so as to take account of the proportionality of the action, it is to be done on the basis of Keegan and O’Keeffe, rather than as an entirely novel criterion. As Fennelly J. noted at p. 817 in the same case:-
“Two fundamental principles must, therefore, be respected in the rules for the judicial review of administrative decisions. The first is that the decision is that of the administrative body and not of the court. The latter may not substitute its own view for that of the former. The second is that the system of judicial review requires that fundamental rights be respected.”
Thus although some consideration of fundamental rights may be entered into in judicial review, this in no way affects the traditional position that such remedy cannot be used as a rehearing or otherwise to determine conflicts of fact.
132. In light of the comments already made as to the adequacy of judicial review, I would not find that Meadows has substantially altered that position in this regard.
Applicability of Article 6, 13 and 14 of the Convention:
133. In relation to the reliance placed on additional articles in the Convention, these are not applicable to the present cases. As noted in Connors, since the protection of Article 8 rights necessarily incorporates consideration of sufficient procedural safeguards, the requirements of Article 6, insofar as they are relevant, are effectively subsumed into the Article 8 rights (see Connors at paras. 102-103). In those circumstances no separate decision is required on whether there is also a contravention of Article 6 of the Convention.

134. Notwithstanding this, insofar as the requirements of Article 6 are incorporated in the determination with regards to the fair procedures required to vindicate infringements of Article 8 rights, the ECtHR case in Tsfayo is instructive. In particular the court stated at paras. 46 and 47 that:

“46. The Court considers that the decision-making process in the present case was significantly different. In Bryan, Runa Begum and the other cases cited in paragraph 43 above, the issues to be determined required a measure of professional knowledge or experience and the exercise of administrative discretion pursuant to wider policy aims. In contrast, in the instant case, the [Housing Benefit and Council Tax Benefit Review Board (“HBRB”)] was deciding a simple question of fact, namely whether there was “good cause” for the applicant’s delay in making a claim. On this question, the applicant had given evidence to the HBRB that the first that she knew that anything was amiss with her claim for housing benefit was the receipt of a notice from her landlord – the housing association – seeking to repossess her flat because her rent was in arrears. The HBRB found her explanation to be unconvincing and rejected her claim for back-payment of benefit essentially on the basis of their assessment of her credibility. No specialist expertise was required to determine this issue, which is, under the new system, determined by a non-specialist tribunal (see paragraph 22 above). Nor, unlike the cases referred to, can the factual findings in the present case be said to be merely incidental to the reaching of broader judgments of policy or expediency which it was for the democratically accountable authority to take.
47. Secondly, in contrast to the previous domestic and Strasbourg cases referred to above, the HBRB was not merely lacking in independence from the executive, but was directly connected to one of the parties to the dispute, since it included five councillors from the local authority which would be required to pay the benefit if awarded. As Mr Justice Moses observed in Bewry (paragraph 33 above), this connection of the councillors to the party resisting entitlement to housing benefit might infect the independence of judgment in relation to the finding of primary fact in a manner which could not be adequately scrutinised or rectified by judicial review. The safeguards built into the HBRB procedure (paragraphs 23-24 above) were not adequate to overcome this fundamental lack of objective impartiality.”

135. Thus where a conflict of facts arises, which is required to be determined in relation to an alleged illegitimate infringement of Article 8, it is necessary that there be some independence between the decision-maker and those, on either side, who make, support or seek to rely on the allegations in question. It is clear that any review undertaken in this regard, must be performed by a person who is rationally unconnected to those whom I have mentioned. This however should not be interpreted as requiring that a court must be the body to determine upon the matter. This could not be so; once there are in place procedures to ensure that where such questions of fact arise, there is access to an independent decision-maker acting within a process which is otherwise safeguarded, such will suffice. This requirement will only arise where the factual dispute is genuine, and where it is materially central and related to the Convention rights at issue.
136. Insofar as it is contended that Article 13 of the Convention has been breached, it is suggested that there is no effective remedy for the protection of rights under Article 8, given that there is no mechanism to challenge findings of fact. Whilst it is arguable that this may be the case, as with the matters under Article 6, this issue, and the complaint in relation thereto, can effectively be subsumed into the consideration of Article 8 rights. No alternative consideration is required.

137. In relation to the alleged breach of Article 14 of the Convention, this is rejected. Unlike in the cases of McCann or Connors, or indeed many others, the treatment of both Messrs. Donegan and Gallagher did not arise by virtue of discrimination based on any of the grounds set forth in Article 14 of the Convention. Whilst it is true that local authority tenants are treated differently to private tenants, this could not be considered discriminatory in the sense of Article 14 of the Convention. Their difference in treatment arises not by virtue of any particular individual characteristic. Even should Article 14 of the Convention arguably be engaged, I would nonetheless conclude that any such difference in treatment is readily justifiable by virtue of the particular circumstantial differences between housing authority and private tenants, and in addition, as referable to a legitimate aim.
The Floodgates Argument:
138. The Council has argued that should this Court find in favour the Messrs. Donegan and Gallagher in the instant cases, this will make the operation of their obligations and duties, including their responsibility for housing allocation, unworkable. Furthermore, it is likely that the situation which arises in the present cases would become commonplace, with even the merest hint of a conflict of facts being raised to force the Council to undertake some form of independent review.

139. Such a consequence is not accepted. The fact that additional administrative burdens may be placed on the Council, in appropriate cases, where the factual circumstances are those described above, cannot be allowed to permit a violation, if otherwise found to exist, to remain without remedy. In any event, according to the Council’s own evidence, there are only a small number of cases in which s. 62(3) of the Act of 1996 is used.

140. Irrespective of this, there is no evidence to suggest that it will have any significant impact on the performance of the Council’s public duties. In most cases there will be little dispute on facts which are central to the issue. Where no such dispute arises, the decision to terminate a tenancy will not give rise to a requirement of procedural safeguards, necessitating independent review; a good example in this regard would be the circumstances in Leonard, where what the tenant wished to offer had no bearing on the lawfulness of her eviction (paras. 150 to 152 infra). The mere fact that a person seeks to make a plea ad misericordiam is not sufficient to engage the procedural rights identified.

141. The contention that a positive finding in favour of either Mr. Donegan or Mr. Gallagher will give rise to a significant burden on the Council when carrying out its functions in relation to its social housing obligations is therefore rejected.

142. It might lastly be noted in this regard that obviously questions, such as those considered above, will only arise where Article 8 rights are actually engaged in the first place. Thus it could not be the case that in allocating housing the Council, would be required to comply with the procedures set out above. In performing this function the Council, having regard to the provisions of domestic law which apply to it, must have sufficient flexibility in that regard, bearing in mind the multiple competing interests that arise. It would therefore be difficult to see how a complaint could be made, for example, that it failed to properly consider an application for housing, at least under Article 8 of the Convention. It is trite to note that in order for any question of Article 8 of the Convention to arise, the decision in question must relate to the person’s “home”; this is a factual question relating to the person’s place of occupation at the time. Where an application is made, their potential future place of occupation is not their home for the purposes of Article 8 of the Convention. The decision herein therefore has no application in those circumstances.
In Conclusion:
143. The general principles deducible from the above are as follows:

(1) That the District Court, on a s. 62 application, cannot entertain any submission other than that relating to the formal proofs demanded by the section. In particular it has no jurisdiction to hear and determine issues of fact, or mixed issues of fact and law, referable to the preceding decision or the reasons therefor, of the housing authority to terminate the tenancy.
(2) This interpretation of s. 62, which had been established prior to the enactment of the Act of 2003, has not been effected by the provisions of s. 2 of the that Act. Neither has it been affected by virtue of s. 86 of Deasy’s Act.

(3) Article 8 of the Convention affords to every person the right to respect for his private and family life and, as relevant to this case, his home. This right does not entitle one to a home or to have his housing requirements satisfied by a public authority. “Home” has a meaning special to the Convention, which is not dependent on the legal status of the occupier under domestic law.

(4) (i) Under Article 8 there shall be no interference with this right save:-

(a) as is in accordance with law,
(b) as is necessary in a democratic society, and

(c) as in pursuance of a legitimate aim,

(ii) The obtaining of a warrant under s. 62 of the Act of 1966, and its execution, is undoubtedly such an interference with the right given by Article 8: accordingly, by reason of that fact Article 8 is engaged. Whether any preceding step, such as the decision to serve a Notice to Quit and its actual service also constitute such an interference is a question not necessary for determination.
(iii) When a warrant is issued, by virtue of s. 62 of the Act of 1966, it is issued in accordance with law,

(iv) The objective of obtaining such a warrant can be regarded as being within the scope of the legitimate aims referred to in para. 2 of Article 8, such as, amongst others, in the interest of good estate management, in the protection of the rights of others, including of the landlord and neighbouring tenants,

(v) The phrase “necessary in a democratic society” is understood to mean that such will be satisfied if it answers a “pressing social need” and if the interference is proportionate to the aim pursued.

(5) It is accepted that by reference to the constituent elements in Article 8, only those referable to necessity and proportionality are relevant to the instant cases.
(6) In determining whether an interference is Article 8 compliant, the regulatory framework within which the measure has been established and operates will be assessed. Questions such as, (i) is the framework procedure sufficient to afford true respect to the interests safeguarded by the Article, (ii) is the decision making process fair in such a way as to respect that right, (iii) has the affected person an opportunity to have any relevant and weighty arguable issues tested before an independent tribunal and, (iv) has that person an opportunity to have such an issue considered against the measure, to determine its proportionality.

(7) Where any one or more of these requirements, when considered collectively and having regard to the margin of appreciation, is absent, it may be considered that the safeguards necessarily attendant on Article 8 for the purposes of its vindication have not been satisfied. A violation in such circumstances may follow.

(8) The suggested procedural safeguard as applying in this jurisdiction is the remedy of judicial review; as above-established, s. 62(3) cannot be relied upon in this regard. Whilst, in a great number of cases judicial review will be a sufficient and appropriate remedy, by which issues between public landlords and their tenants, arising out of that relationship, can be resolved, there will undoubtedly be some rare cases in which such remedy will not be suitable. This results from the nature and scope of judicial review and, in particular, from the limitation of its operation relative to the factual dispute.

(9) It is accepted, and I so hold, that on a judicial review application the court cannot substitute, for the facts presented, its own view as to what they should be. Moreover, the court is not fact finding and thus cannot resolve conflicts in this regard. This limitation, applies even if the challenge is one of unreasonableness in the O’Keeffe sense.

The Case of Mr. Donegan
144. Mr. Donegan has been a tenant of the Council for more than 25 years. He has always discharged his rent and otherwise complied with the terms and conditions of his letting agreement. His occupation at all times has been lawful. It has not been suggested that apart from the issue with his son, the Council would have terminated his tenancy and sought a s. 62 order.
145. The consequences of such a step, as it applies to Mr. Donegan, are most far reaching. For the first time in more than 25 years, perhaps in his lifetime, he will be without a home. As a matter of domestic law he has no right to remain in occupation of the house, although with the indulgence of the Council he so remains. Moreover, as clause 13 of the lease is in play, he has been deemed to have deliberately rendered himself homeless within the meaning of s. 11(2)(b) of the Housing Act 1988, with serious consequences resulting from that provision. This has all come about, not because of anything done personally by Mr. Donegan, but by reason of some vicarious responsibility which he has for the conduct of his son. This conduct, said the Council, shows that his son is a drug pusher, whereas Mr. Donegan insists that he is an addict who is dealing with his addiction.

146. This issue came to light after a garda search of Mr. Donegan’s dwelling house in November, 2003. No actual drugs were found, but certain items associated with them, were. The gardaí made a report to the housing authority under statutory request. A number of meetings took place between Mr. Donegan and officials of the Council. At such meetings this allegation of his son being a drug pusher was made and repeated, but all stages was emphatically denied by Mr. Donegan. Evidently the Council rejected what he had to say in this regard as they continued to seek his eviction.

147. It is interesting to note that during these exchanges he was offered, as a means of keeping his house, the choice of applying for an exclusion order against his son. He declined to do so. If his contention be correct, it is hard to find fault with his fatherly instincts to look after a recovering son. In any event, what is of significance is the fact that the Council bypassed a statutory procedure which would have enabled them, at least to seek such an order if they saw fit. The reason, or at least part of the reason, which is admitted as much in the submissions, is that on such a hearing a contest on the merits of the application could be conducted. This, they say, creates particular difficulties for them in terms of getting witnesses to prove anti-social behaviour. Accordingly, justifying their actions in this way, they bypassed that process and instead terminated on notice.

148. It should also be noted that the process by which the Council interviewed Mr. Donegan is ad hoc, unstructured and unregulated. Insofar as the evidence goes it is quite uncertain if the manner as to how it works is published or within the public domain. It is of course conducted by the Council and it is unclear what, if any, measure of independence or distance such persons have with those deciding on the eviction. It is solely in the nature of an investigation. Therefore, in my view, by no means of understanding could such a process be regarded as of value, within the safeguarding procedures as demanded, by Article 8 of the Convention.

149. Apart from such interview process, Mr. Donegan has had no opportunity of having his argument as to his son’s condition aired or determined before an independent body. The issue is one of extreme simplicity but requires a mechanism to determine factual conflicts. If determined in his favour it must be that the Council could not pursue the eviction order which it presently seeks. It would be entirely contrary to their reasoning justifying such a move, were they to do so. Therefore, a resolution of this matter is of the highest importance to Mr. Donegan. Given the enormous significance which this interference, by way of eviction, would have on his right to have due respect shown for his home, it follows, that the existing process by which such eviction may be sought, constitutes an inadequate safeguard in that respect and therefore, his Article 8 rights have not been respected.

150. The decision of the High Court in Leonard, in rejecting the Convention challenge to s. 62 of the Act of 1966, was sought to be relied upon by the Attorney General and by the Council in this case. However, it does not in my view in any way enhance or support their position. Ms. Leonard held a council house under the terms of a letting agreement, which by incorporation included a term that a named individual would not reside in it. If he did, such would constitute a breach of the agreement and would entitle the council to recover possession. On a number of occasions, complaints were made to the council that such a person was seen in the premises. The council met with Ms. Leonard, put these complaints to her and warned that, if the situation continued she would be in breach of clause 13 of the letting agreement, thereby entitling the council to seek possession.

151. The situation did not improve and on further interviews she admitted that the individual in question, her partner, was on the premises. She was given an opportunity to have her file reviewed as the council intended to seek possession. They did so by the service of a Notice to Quit. In her judicial review application her essential focus of challenge was on the proceedings before the District Court where she complained of not being afforded an adequate opportunity of addressing the issues, surrounding this individual in the context of the breach of the Anti-Social Behaviour clause in the lease. In essence, her complaint was that by reason of the provisions of s. 62 she was not afforded an opportunity of making what has been described as a plea “ad miscericordiam”.

152. The critical distinguishing feature between that case and the instant case is the fact that Ms. Leonard admitted to being in breach of clause 13 of the agreement. Furthermore, she did not dispute the council’s entitlement to terminate the agreement by virtue of its provisions. Therefore, there was no factual dispute concerning the decision to terminate the tenancy. This is in striking contrast to what the situation was in Connors, McCann, and in the instant cases. Therefore, the fact that the learned judge was satisfied that there was no violation of Article 8, was specifically related to the factual context as above described. Such decision has no wider meaning or implications than that.
Mr. Gallagher:
153. The position with regard to Mr. Gallagher is, in one respect pretty identical to that of Mr. Donegan, but in another fundamentally different. It will be recalled that in accordance with the Council’s Scheme of Letting Priorities, for a son or daughter to succeed to their parent’s tenancy, that person has to be resident in the house and have been on the rent account for the period of two years immediately preceding, as in this case, the death of the tenant. Mr. Gallagher claims that he has complied with the first requirement. Following a number of meetings with the Council, during which he submitted supporting documentation, the Council came to the view, that he did not come within requirement number one. In the District Court, on the s. 62 application, the District Judge, so as to facilitate the case stated, embarked upon a fact finding mission on this issue. Having heard various witnesses he concluded that Mr. Gallagher had been so resident as he had claimed. Thus, there is a clear conflict between the Council’s view and the finding of the District Court. To that extent he becomes the beneficiary of the same views as I have expressed in the case of Mr. Donegan.

154. However, there is no conflict with regard to the second requirement in that Mr. Gallagher does not dispute the fact that he was removed from the rent account in August 1995, when he went to live with his partner, and that at no time thereafter was his name re-entered on the account, or was he otherwise assessed for rent in respect of the dwelling house in question. Therefore, this requirement is conflict free and its existence as a condition of succession is not disputed. It would therefore seem entirely superfluous to have such an issue further explored. The position is as stated by the Council, and accepted by Mr. Gallagher.

155. There can be no doubt but that the Council are entitled to have such requirements, as conditions of succession. They are justified in so doing so that individuals will not obtain accommodation free of contribution, to the detriment of others, who are both willing and obliged to pay. Moreover, an obvious effect of acting in breach of this requirement is that the rent actually paid by Mr. Gallagher’s mother has been less than what it should have been. Therefore there can be no doubt, but that such a requirement is a legitimate part of the Council’s estate management regime so as to efficiently and effectively discharge their public duties.

156. In addition, the position of Mr. Gallagher is further unlike that of Mr. Donegan in this most material way: the former was never a tenant of the Council and his occupancy of the house, such as it was, was in breach of clause 8 of the Tenancy Agreement. In addition, he never had any proprietary estate or interest in the property, and had no legal right to reside there. Therefore at best his situation is analogous to Ms. Leonard, in who’s case as previously stated, Article 8 rights were not engaged. In Mr. Gallagher’s situation, noting the circumstances which I have described, his optimum position is to plead with the Council to have requirement number two disregarded for the purposes of succession. I do not think that Article 8 rights can be invoked for this purpose. That being the situation, and notwithstanding the residency conflict, I do not believe that the safeguards required have been substandard so as to violate his Article 8 rights. Consequently, I would refuse to grant any relief in his case.

157. Nonetheless, in relation to the questions posed by the District Court in Gallagher (noted at para. 26 supra) I would agree with the learned High Court judge, and would answer, in light of the reasons already outlined:

Question 1: Yes
Question 2: No

Question 3: No

Question 4: No

158. For the reasons above given, I will dismiss his cross appeal insofar as it relates to the submission referrable to Deasy’s Act.
159. Finally, in relation to the relevant remedy in the case of Mr. Donegan, in light of the decision given above and noting the absence of any other adequate legal remedy, I would issue a Declaration of Incompatibility in relation to s. 62(3) of the Act of 1966, pursuant to s. 5(1) of the Act of 2003.

160. In light of the aforesaid, it is not necessary to deal with any other issues raised in these appeals.

 

 Felloni v. Dublin Corporation

 

[1996] IEHC 31; [1998] 1 ILRM 133 (19th November, 1996)

Felloni v. Dublin Corporation [1996] IEHC 31; [1998] 1 ILRM 133 (19th November, 1996)
THE HIGH COURT
1993 No. 6642p
BETWEEN
REGINA FELLONI LATE A MINOR NOW OF FULL AGE
PLAINTIFF
AND
THE RIGHT HONOURABLE THE LORD MAYOR, ALDERMEN AND BURGESSES OF DUBLIN
DEFENDANTS

Ex-Tempore JUDGMENT of Mr Justice Morris delivered on the 19th day of November 1996.

1. In this case the Plaintiff’s claim can be summarised as follows. She said she resided with her aunt at her aunt’s premises which is a flat and she said that it became necessary for her because of the defect in the door to go about the closing of the door behind her by putting her fingers around the edge of the door, giving it a sharp pull and allowing it to slam in the hope that she would have got her fingers out of the way in time in order to avoid an accident, but she says on the 20th February, 1991 when she was 15 years of age, she was sent on a message by her aunt. She tried to perform this manoeuvre but unfortunately her timing was wrong with the result that she lost the tip of the finger on her left hand which is shown in the photographs that have been submitted and particularly in photograph No. 4.

2. Now, the basis upon which the claim is put on behalf of the Plaintiff is as follows: It is said that the Corporation as the Housing Authority under the Housing Act, 1966 is fixed with the obligation of providing the tenant with a house that was reasonably fit for human habitation and because of the failure on the part of the Corporation to provide the house with a handle with which the tenant and their licensees could close the door with safety rendered the premises unfit for human habitation and it is put further on the basis that the Corporation had an additional obligation to keep the premises in a reasonable state of repair and since they had an obligation to carry out repairs of which they were aware they had an obligation to respond to the notification of this defect by attending at the premises and carrying out such repairs as were necessary, in particular in putting a handle on the door.

3. First of all, I am satisfied at the time when the flat was handed over to the Corporation this defect which has now been described was not present and that seemed to be manifested by the fact that there exists on the door of the premises as shown in the photographs produced by the Corporation the remains of what was obviously a knocker and it would appear to make sense to me that the Corporation, when they originally delivered up this apartment to the tenant would have provided it with the ordinary door furniture, which can take the form of a Yale lock, a letter box and some form of door knocker, which would also act as a pull in order to allow somebody leaving to pull the door shut behind them, and therefore, I am satisfied from this photograph that has been produced by the Corporation that was the condition of the flat originally but with the passage of time and I dare say use, that knocker became defective and it became necessary for Mrs Carroll and her invitees to close the door as she describes by using her key as a pulling mechanism.

4. Now, I am satisfied also that there would be an obligation on the part of the Corporation if they became aware of the fact that there was a defect in the door which made the tenant and their invitees necessary to expose themselves to the risk of injury. There was an obligation on the Corporation to attend to such a defect. However, I am not satisfied that the Corporation were ever made aware of any such defect and I believe that arises because of the fact Mrs. Carroll did not see it herself as anything in the nature of a problem. I accept with some reservation part of her evidence but accept the evidence of the way that she said that at one stage she got a friend of hers and a nearby neighbour to put a bolt on this door and I feel that if she had seen it a desirable or necessary in the interest of safety to have a knob on the door she would either have got in touch with the Corporation or indeed with her neighbour or some friend and ask them to put a knob on the door. I am not satisfied that she ever saw it as a problem herself. I am not satisfied she ever notified the Corporation, and therefore I find no evidence of negligence on the part of the Corporation in delivering the flat which was unfit for human habitation in the first instance, nor do I find any evidence of negligence in that they failed to respond to a legitimate complaint made in respect of the door. I want to go further in this case, I want to say this, even if I were to find that there was negligence on the part of the Corporation and a failure to comply with their obligations under the Housing Act, 1966 that I believe that that negligence would be overwhelmed and overtaken by the negligence on the part of Mrs. Carroll and on the part of the Plaintiff in this case in allowing the state of affairs to continue whereby presumably a number of times a day they would voluntarily expose themselves to what must have been a risk of injury in the slamming of the door when the remedy was available to them at little or no expense, to remedy the problem by fixing some sort of handle onto the door be it whatever so inexpensive, I am satisfied on the authority of Crowley v. AIB and on the Oyster Bank case whatever negligence there was on the Corporation if there was any in failing to make this door safe that negligence was overwhelmed and overtaken by the continued negligence on the part of the Plaintiff herself who was at that time 15 years of age, and if I may say so, a young lady of the world, and on the part of the tenant, Mrs. Carroll and her husband in failing to bring about the remedy that was readily available to them and accordingly for all of these reasons, in my view the Plaintiff’s case fails.

Keegan -v- Sligo County Council

 

[2017] IEHC 722 (30 November 2017)

Title:
Keegan -v- Sligo County Council
Neutral Citation:
[2017] IEHC 722
High Court Record Number:
2016 3562 P
Date of Delivery:
30/11/2017
Court:
High Court
Judgment by:
Barr J.
Status:
Approved
[2017] IEHC 722
THE HIGH COURT
[2016 No. 3562 P.]
BETWEEN
THOMAS KEEGAN
align=”right”>PLAINTIFF
AND
SLIGO COUNTY COUNCIL

DEFENDANT

JUDGMENT of Mr. Justice Barr delivered on the 30th day of November, 2017
Introduction
1. Since in or about 2004, the plaintiff has been a tenant to the defendant of the property at No. 1 McNeill Drive, Cranmore, Sligo. The property had been supplied by the defendant to the plaintiff, in their capacity as the housing authority for the relevant area. While the tenancy agreement was not put in evidence before the court, it was accepted by all parties, that the plaintiff, was not entitled to carry out works to the property. Instead, he was instructed to report any complaints or problems that he had with the property to the defendant and they would inspect the property and carry out such remedial works as were deemed necessary.

2. This action arises out of an accident which occurred on 18th November, 2013. It is the plaintiff’s case that on returning to his house in the early evening, he was caused to slip on the front porch of his house. The porch itself was an exposed porch. The surface of the porch was made up of mosaic tiles. It was common case between the parties that it had been raining earlier that day.

3. The essential issue in this case is whether the tiles were appropriate for use on an exposed exterior porch. The plaintiff’s engineer was of the view, that as these were semi-glazed tiles, they would become slippery and dangerous when wet and as such, were inappropriate and unsafe for use in an exposed exterior porch. The defendant’s engineer was of a contrary view. He was of the opinion that these were unglazed tiles and as such were perfectly adequate for use at the house.

4. While the engineers disagreed as to whether the surface of the tiles were glazed or unglazed, there was broad agreement between them that having tested the slip resistance of the surface of the tiles; the tiles posed a low risk of slipping when dry, but were in the range of moderate risk of slipping, when wet. The engineers agreed on the results of the slip alert test values, in particular that the tiles were in the medium or moderate risk of slipping category when wet, but disagreed that this finding made the tiles inappropriate for use at the locus of the accident.

5. There was also a dispute between the parties as to whether any complaints had been made by the plaintiff in relation to the tiles and in particular, in relation to the danger of slipping thereon, prior to the time of the accident. The plaintiff maintained that complaints had been made by him to various members of the defendant’s staff. The defendant denied that any such complaints had been made by the plaintiff.

6. The defendant also made the case that having regard to the quantity of alcohol which the plaintiff had consumed on the day in question, which was admitted by the plaintiff to have been some five pints of beer, it was asserted that the plaintiff had failed to take reasonable care for his own safety when entering his property and that this lack of care had led to the accident. It was further put to the plaintiff that having regard to the detailed mechanism of the alleged slipping incident, as given by the plaintiff in evidence, that his account was totally incredible and that the accident simply could not have happened in the manner alleged by the plaintiff.

7. As a result of the accident, the plaintiff suffered a pilon fracture to his left ankle which required surgical fixation. Two plates were inserted into his ankle joint. These were subsequently removed by surgical procedures carried out in November, 2015 and August, 2016. The plaintiff’s surgeon is of opinion that he has gone on to develop osteoarthritis in the ankle joint as a result of the injury.
The Evidence on Liability
8. The plaintiff stated he spent most of his working life as a building labourer, doing paving work on roads and footpaths in the U.K. He returned to Ireland in May, 2004. He was allocated the property at 1 McNeill Drive, Cranmore, Sligo by the defendant. He had been unemployed for a number of years prior to the accident.

9. On 18th November, 2013, he left his house in the morning for the purpose of attending a funeral. On exiting the front door, he noted that a rubber backed mat, which he had placed on the porch in front of the hall door, was extremely wet. As was his usual practice, he lifted the mat and brought it to his side gate and hung it over the gate. He then proceeded into Sligo, where he attended the funeral. After the mass and having attended at the burial, he visited three public house, were he consumed a total of five pints. He then went to a supermarket, where he purchased some sandwiches. He ate one of these on his way home.

10. When he arrived at his house, he noted that the mat had been removed from his side gate. He did not know who had removed it, or to where it had been taken. He proceeded down the garden path and came to the tiled porch area in front of his hall door. He stated that it had been raining that day and the tiles were wet. He placed the key into the lock of the front door with his left hand and depressed the handle with his right hand. While moving forward his left foot slipped on the tiles and he fell forward, through the partially opened hall door landing in his hall. He managed to crawl to the kitchen and then made his way to the telephone, from which he phoned for an ambulance. He was taken to Sligo Hospital, where his ankle was x-rayed and placed in a back slab. He was admitted to hospital. On the following day operative treatment was carried out to the ankle by Mr. William Gaine FRCSI, who inserted two plates and screws into the fractured area. The ankle was then placed in a plaster cast. The remainder of the plaintiff’s evidence in relation to his injuries and subsequent recovery, will be dealt with later in this judgment.

11. In the course of his evidence, the plaintiff stated that on several occasions prior to the accident, he had gone to the Regeneration Office of the defendant, which was situated close to his house, and had complained about the tiles on his front porch being slippery when wet. He stated that the staff in the office took a note of his request, but he heard nothing from any representative of the defendant. He stated that at some later time, the defendant did arrange for the windows and exterior doors on his property to be changed, as part of the regeneration of the estate generally. The plaintiff stated that he asked the contractor to move the front door forward, so as to close in the porch area, but he was told he could not do that, as the ESB meter, which was situated in the porch area, had to be accessible for inspection. The plaintiff stated that if the front door had been moved forward so as to enclose the porch area, he would then have raised the interior porch level with concrete, so as to make it flush with the level of the hallway.

12. In cross-examination, the plaintiff was strongly challenged in relation to his alleged complaints concerning the tiles in the porch area. It was put to the plaintiff that whenever complaints were made by any tenants to the defendant, either at the Regeneration Office or elsewhere, those complaints would be logged and an inspection would be carried out and such remedial action as was deemed appropriate would then be sanctioned. It was put to the plaintiff that he had made a large number of complaints, in relation to various aspects concerning his property, but the evidence of the defendant’s representatives would be that there were no complaints at all in relation to the tiles in the porch. The plaintiff was adamant that he had made complaints in the Regeneration Office. He stated that sometimes his complaint was put onto a yellow sticker. He stated that he made the complaints to various girls who worked in the office. He could only recall their first names. He recalled making complaints to a woman named Kay and a woman named Sinead. He stated that he had not made any complaints to a lady named Marissa. He stated that he had also made an informal complaint to Mr. Dessie McGarry, the Estate Manager, when he met him one day on the street. He had also asked Mr. Noel Meehan, if his front door could be moved forward, so as to enclose in the porch area.

13. The plaintiff was asked whether he knew Ms. Marissa Morgan, who worked in the Regeneration Office. The plaintiff said that he did. It was put to the plaintiff that Ms. Morgan would state that the record showed that he made 39 complaints since the system was computerised and twelve complaints prior to that, but that none of these related to the tiles on his porch. The plaintiff stated that he might not have made any complaints to Ms. Morgan, but he had made complaints to others in the Regeneration Office. In relation to his request made to Mr. Meehan, in relation to moving the front door, Mr. Meehan would say that there had been requests made by the plaintiff in relation to putting in solid panels into the new front door, rather than glass panels and he had also made certain requests concerning windows in his sitting room. These had been passed on to Mr. McGarry, who subsequently wrote to the plaintiff in relation to his concerns. However, there was no mention of moving the front door forward so as to enclose in the porch. The plaintiff was adamant that he had made such a request of Mr. Meehan, but had been told that it was not possible due to the position of the ESB box.

14. It was put to the plaintiff that in a letter dated 26th February, 2009, Mr. Gary Kelly, the community warden, had written to the plaintiff in relation to a number of repairs that he had requested be carried out to his residence. Attached to that letter was a list of twelve such requests. It was put to the plaintiff that there was no mention of any tiles in that list. The plaintiff stated that there had been a number of faults with his house. When he first moved in, he had been told that he would be moving from the property, as the County Council were going to knock the house. However that was later changed, so he made complaints at that stage. The complaints in 2009 were in relation to his kitchen, the windows and other matters. He accepted that he had made complaints in relation to the various items on the list, but was adamant that he had also mentioned the tiles. It was put to the plaintiff that there was no mention of him having made any complaints, or that these complaints were ignored by the defendant, in the Personal Injury Summons issued on his behalf. The plaintiff stated that he may have forgotten to mention the complaints to his solicitor.

15. The plaintiff was questioned at length in relation to the exact mechanics of the slip and fall. It was put to the plaintiff that if he had managed to insert the key into the key hole with his left hand and was depressing the handle with his right hand, it would not have been possible for him to have been moving at that time and therefore he could not have slipped on any wet tiles in the porch as alleged. The plaintiff stated that he had slipped and fallen forward through the partially opened front door, as a result of his left foot slipping on the wet tiles. It was put to the plaintiff that the accident simply could not have happened in the manner described by him. The plaintiff said that it had happened in that way.

16. It was put to the plaintiff that he had had a considerable quantity of alcohol to drink that day prior to the accident. The plaintiff stated that he had had five pints since returning from the graveyard, but that that had not unduly affected him.

17. Finally, it was put to the plaintiff that he had not been entirely frank with his own doctor, or with the defendant’s doctors, in relation to his medical history. In particular, he had failed to mention that on 15th July, 2014, while walking along the public footpath and using a stick, his foot had slipped from the footpath and he had suffered an inversion injury to the left ankle. Nor had he told them that he had attended at hospital, where x-rays had been taken. The plaintiff stated that that had been a very minor incident and that he had only gone to hospital to make sure that he had not caused any further, or additional, damage to his left ankle. X-rays had been taken and he had been reassured by the medical staff that no new damage had been caused. For that reason he had not thought it significant and had not mentioned it to the doctors, or on his P.I.A.B. form.

18. Evidence was given by the Mr. Brendan O’Hara, who is the tenant of No. 2 McNeill Drive, Cranmore, Sligo. He stated that in approximately 2010, he had asked the defendant to replace the tiles in his front porch, due to the fact that there had been a 1.5 inch gap running through the tiles, which was causing an ingress of dampness into the walls of the property and into the hall. The defendant had replaced the mosaic tiles with large black tiles, as shown in photographs Nos. 9 and 10 of the photographs taken by Mr. O’Brien. Mr. O’Hare stated that these tiles were totally unsuitable, as they were particularly slippy when wet. He stated that he had made complaint in relation to the black tiles that had been placed in the porch and that it was some six years later, in or about 2016, that the tiles had been replaced.

19. In cross-examination, it was put to the witness that he had in fact only made complaint in relation to those tiles in November, 2015 and that following an inspection of them, they had been replaced very promptly on or about 6th January, 2016. In these circumstances, it was put to the witness that while it was accepted that the black tiles were unsuitable for using in an exterior porch, as they were interior bathroom tiles, the defendants had reacted promptly to his complaint. The witness did not accept that.

20. The key evidence on liability on behalf of the plaintiff, was given by Mr. Tom O’Brien, consulting engineer. He had inspected the locus in February 2015 and had prepared a booklet of photographs for the court. He noted that the front of the property in question was south/south-west facing. He stated that generally along the western seaboard, the winds generally came from a south-westerly direction. The porch opening was 2110mm high. The width of the tiled area was 1480mm. The depth from the hall door to the front edge of the porch was 850mm. Mr. O’Brien noted that there was a very slight slope in the porch surface running away from the hall door at a gradient at 1/33.

21. Mr. O’Brien stated that the modest slope on the porch, had presumably been put in place to prevent water from lodging on the surface. It was not an unusual feature. He did not criticise the design of the porch on account of the presence of this slope. However, he stated that it was widely known and recognised that a slope reduces the slip resistance of a surface.

22. Mr. O’Brien stated that the tiles in the porch were mosaic tiles which measured 20mm x 20mm. These were shown in close up in photographs No. 7 and 8. From his inspection of the locus, he was satisfied that these were semi-glazed mosaic tiles. This meant that, while they were not fully glazed, such as one might find in an interior bathroom, they did have some level of matt glazing on the surface. This meant that the tiles would constitute a significant risk of slipping, when wet. Given that this was a south-west facing exterior porch, it was foreseeable that in the weather conditions pertaining in the west of Ireland, the tiles would become wet on a frequent basis. As such it was foreseeable that persons traversing the porch area, would be exposed to a risk of slipping on a frequent basis.

23. Mr. O’Brien agreed with the results of the slip tests carried out by the defendant’s engineer. This showed that the tiles gave a good slip resistance when dry, but were in the category of medium or moderate risk of slipping when wet. When wet and dirty, the slip resistance value was 133. When the tiles were wet and clean, the resistance value went up to 138. Anything over 130 is classed as posing a moderate risk of slipping. Mr. O’Brien stated that given these values, he was of the opinion that these particular tiles were unsuitable for use in an exterior porch. He stated that the defendant should have used unglazed tiles, possibly with ridges or dimples in the tile surface to aid traction and reduce the risk of slipping.

24. Mr. O’Brien stated that he had looked at other houses in the same estate. He had looked at a total of 62 houses, including the plaintiff’s house. Most of the porches on the properties, numbering 52 in total, were either enclosed, or had a concrete surface. There were nine porches which were still exposed and had a tiled surface.

25. In cross-examination, it was put to the witness that the defendant’s engineer was firmly of the view that these were, in fact, unglazed tiles. During the course of the hearing and by agreement between the parties, both engineers attended at the plaintiff’s house on 7th November, 2017, to see if the dispute as to whether the surface of the tiles was glazed or unglazed could be resolved. Unfortunately, it was not possible to resolve the dispute. Both engineers remained of their differing views as to the nature of the surface of the tiles.

26. Mr. O’Brien remained of the view that these were semi-glazed tiles, meaning that there had been a form of glazing applied to the surface of the tiles, albeit with more of a matt finish than a high gloss finish, as would be found on interior tiles. In support of this opinion, he referred to the two photographs that had been taken in the course of the further inspection of the locus. In photograph No. 2, the middle tile had been damaged such that the surface had been chipped away. The surface of that tile was rougher and appeared untreated, in contrast to the surface of the other tiles, which were clearly shown in the photograph. He stated that he had reached that opinion, both due to the visual appearance of the broken centre tile and the appearance of the remaining tiles around it, and also by touching the surface of the broken tile and the other tiles. In particular he was of the view that there was a marked difference between the surface of the exposed tile in the centre and the surface of the tile to its left. He did not accept that any difference between the tiles, was simply due to weathering over time.

27. It was put to the witness that in the course of the joint inspection water had been applied to the tiles and that water had been absorbed, indicating that the tiles were untreated. Mr. O’Brien disagreed; he stated that water had not been put on the tiles. Instead, he had licked his finger and rubbed the surface of the tile. It was further put to him that looking at the tile in profile, as could be seen in the broken centre tile in photograph No. 2, that there was no difference between the surface of the other tiles and the material in the broken tile as shown in the first line in photograph No. 2. In other words, that the surface of the tile and the material in the tile itself, as shown in a profile view, were the same. Mr. O’Brien disagreed, he was of the view that there did appear to be a difference between the material in the body of the broken tile and the appearance of the surface of the other tiles.

28. Mr. O’Brien was also of the view that when one looked at the entire porch area, the fact that there was no evidence of specific wear and tear on any particular tiles, other than the broken tiles shown in photograph No. 2 taken on 7th November, 2017, this indicated that the surface of the tiles had been treated in some way. He remained of the view that these tiles were not unglazed, but were semi-glazed tiles, meaning that a dull gloss finish had been applied to the surface of the tiles. He remained of the view that that fact, allied to the fact that when wet, they posed a moderate risk of slipping, rendered them unsuitable for use in an exposed porch.

29. In cross examination, Mr. O’Brien conceded that the small slope in the porch was not unusual and he did not criticise its design on that account. However, its presence would have been a contributing factor in relation to the mechanics of actually slipping, which was something that had been put in issue by the defendant in its cross examination of the plaintiff.

30. He also conceded that small mosaic tiles were preferable to larger tiles, as the grouting between the tiles added to the slip resistance of the general surface.
The Defendant’s Evidence
31. Mr. Morgan Duggan, Consulting Engineer, gave evidence on behalf of the defendant. He examined the locus on 17th May, 2017. He carried out a slip alert test and set out the resulting values at appendix A to his report. From these tests he found that when the tiles were wet and dirty, the average STV was 133. This placed it at the lower end of the medium risk category. He stated that this equated with a Pendulum Test Value of 37.9. Under the relevant British standard the total PTV scale was 0-75. 0-24 was a high risk of slipping category, 25-35 was moderate risk and anything of 37 and higher, was in the low risk category. Accordingly, the PTV for these tiles show that it was in the low risk category.

32. In relation to ceramic tiles generally, they present a high risk of slipping. This would be in relation to glazed tiles, which present a high slip risk when wet. However, unglazed tiles have a low to medium risk of slipping. He was of opinion that these were the type of tiles used on the plaintiff’s porch. He stated that he had tested the slip resistance with his shoe and found that the tiles on the plaintiff’s porch presented good slip resistance to his shoes.

33. Mr. Duggan made the point that the use of unglazed tiles was very common in both the domestic and general urban context. Such tiles are to be found in the entrance to shops and pubs, particularly on O’Connell Street in Sligo and Shop Street in Galway. He stated that tiles were usually chosen because they were aesthetically pleasing, were durable and were easy to clean. While a concrete surface would be in the low slip category, it needed to be maintained, so as to prevent the build up of algae and moss, which would cause the surface to become slippery when wet.

34. Mr. Duggan stated that following the joint inspection on 7th November, 2017, he remained of the view that these were unglazed tiles. He stated that looking at the photographs which had been taken at the time of that inspection, the visual appearance suggested that the surface of the tiles was unglazed. The surface of the tile was rough to touch and where the surface had been broken on one of the tiles, the inner portion of the tile seemed to be of the same material as the surface of the surrounding tiles. He stated that this was clear from the profile of the damaged tile, which was the second tile from the right as shown in the front row of tiles in photograph 2 taken on 7th November, 2017.

35. Mr. Duggan stated that glazing involved the application of a liquid glass compound at very high heat to the surface of the tile. There was no evidence that any such process had been carried out to the tiles in this porch, as there was no evidence of any film of any nature on the surface of the tiles. He stated that they had carried out a moisture test, by placing a licked finger across the top of the tile and within seconds, the tile had dried, which suggested to him that the surface was an untreated surface, which permitted absorption of moisture. This would not have happened if the surface had been glazed. He further stated that he was not aware of the term “semi-glazed” tiles. As far as he was aware, tiles were either glazed or unglazed. In this situation he was satisfied that the tiles were unglazed.

36. He did not agree that from the photographs taken at the time of the joint inspection, the inner material in the tile was of a lighter colour than the surface of the surrounding tiles. Insofar as there may have been a difference in colour, he thought that that may have been due to weathering over time, as the tiles had been placed in situ when the house was built circa 1977. In relation to the point made by Mr. O’Brien that the tiles appeared to have been very durable and in particular the surface thereof appeared durable, suggesting that they had been treated; he stated that tiles were manufactured and designed to be durable. The application of glazing to the surface was purely for aesthetics, rather than for durability of the tile.

37. In cross examination, Mr. Duggan accepted that the tiles had been placed on a porch which was south south-west facing. He accepted that the porch would become wet whenever it was raining from the prevailing winds coming in a south westerly direction. He agreed that on an external porch, ideally the surface thereof should not be slippy when wet. It was put to the witness that it was not appropriate to provide a surface which had a medium risk of slipping when wet. Mr. Duggan agreed that the surface should have a low/medium risk of slipping when wet. He accepted that in the plaintiff’s case, the tiles provided a medium bordering on low risk of slipping. He accepted that it was in the medium range.

38. Mr. Duggan further accepted that while he had estimated a PTV, which put the tiles in the low risk category, he had not done a pendulum test. He had done a Slip Alert Test, which put the tiles in the medium category, but on the cusp of the low category. He accepted that if the area was wet, but clean, it would have an SAT of 138. When wet and dirty, the tiles had a value of 133 and on this account he had given an average value of 134 when wet. However, he stated that even at 138, this was at the lower range of medium. Mr. Duggan was asked as to whether a medium risk surface when wet, was acceptable for use on an exposed porch. He stated that in his opinion the tiles were acceptable for use in such an area, given that they had an average SAT of 134.

39. It was put to the witness that if an unglazed tile would have a low risk category when wet, the test findings in this case indicated that the tiles were probably glazed, or at least semi-glazed. Mr. Duggan did not agree with that assertion. He stated that an unglazed tile would give a low, or a medium/low risk of slipping when wet. When asked as to what unglazed tile would actually give a medium reading when wet, the witness stated that this would depend on the amount of wear on the surface of the tile, but they would be in the medium/low category when wet. It was put to the witness that if the tiles were unglazed as alleged by him and were mosaic tiles, then they should be in the low risk category when wet. Mr. Duggan stated that a mosaic tile, due to its size and the number of joints, would provide better slip resistance than larger tiles. Mr. Duggan accepted that some unglazed tiles would be in the low risk category when wet. However, he disagreed with the assertion that because these were unglazed tiles and were mosaic tiles, then they should be in the low category when wet. He stated that he would expect such tiles to be in the low or medium/low risk category, due to the fact that tiles which are worn over time, could have a lower slip resistance value. Here the tiles had been in situ approximately 40 years, so they would have disimproved in terms of slip resistance over time. He thought that if they had been tested 40 years ago, they would probably have been in the low category when wet.

40. It was put to the witness that there was no evidence of any wear on the surface of the tiles from the photographs taken on 17th November, 2017. The witness stated that there was some evidence of wear, as one would get uniform wear over the entire surface. It was inevitable that there would be some wear over 40 years. When asked to point out where on the photographs, there was evidence of wear, he stated it was uniform over the entire surface, rather than being evident in certain areas. Pedestrian traffic would cause the surface to wear. It would not be at the same places each time. One would have uniform wear over the entire surface of the tiles. It was put to the witness that if there had been wear over the years, one would have expected it to lead to and from the hall door, but there was no evidence of that in the photographs. The witness agreed, but stated that the wear was uniform, in that there was no pattern of wear. There would also be wear caused by cleaning of the tiles and by general weathering. It was put to the witness that the fact that there was very little wear visible on the surface of the tiles, suggested they had been treated. Mr. Duggan did not agree with this assertion.

41. Mr. Duggan did not accept that the tiles in question were semi-glazed. He stated there was no such thing as a semi-glazed tile. They were either glazed or they were not. There was no evidence of a film on the surface of the tiles.

42. It was put to the witness that from the photographs taken at the joint inspection, it was clear that on the broken tile, the interior piece of the tile was different to the surface of the broken tile. Mr. Duggan stated that the underlying part was of a lighter colour, because it was not subjected to the same amount of weathering, as the surface had been. He agreed that there was a slight difference between the two portions of the tile. The difference in texture was due to the fact that in ceramic tiles, when they are broken, they will have rougher edges on the broken surface. It was put to the witness that there was a difference in colour and texture shown in the photographs. Mr. Duggan agreed with that assertion. He stated that one would expect such a difference with a broken surface, but the material on both the surface and the inner portion of the tile was the same.

43. Mr. Duggan accepted that a concrete path would constitute a low risk of slipping when wet or dry, as long as there had not been a build up of algae or moss.

44. Evidence was given on behalf of the defendant by Ms. Marissa Moran, who was a community worker employed by the defendant. She had been part of its Estate Management Team in Cranmore since 2008. She stated that if a tenant had a complaint, they would come to the regeneration office in the estate, which was situated across the road from the plaintiff’s house and would make their complaint there. The complaint would be logged and sent forward for further action. Up to 2010, the complaints were mainly recorded on paper. Since that time, they were recorded on the computer system. From that system, she was able to tell that since 2010, the plaintiff had made 39 complaints in relation to various aspects concerning his property. There had been no complaints in relation to the tiles. He had also made complaints prior to that time, but again there was no record of any complaints in relation to tiles. She was not aware personally of any complaint from him in relation to the tiles.

45. Ms. Moran stated that as part of the regeneration project, 67 houses had been knocked down in 2008, and more had been demolished in 2009. They had also carried out refurbishment of a number of houses in the estate. They had never replaced tiles on the porches, except for the tiles, in Mr. O’Hara’s house. She stated that the decision not to replace the tiles but instead to higher the level of the porch with a concrete surface, was done so as to enable disabled access to the front door and hall. She stated that they had never moved the front door of the property forward to the edge of the porch area, as this was considered to constitute a trip hazard. Those houses where the hall door had been moved forward, were generally in private ownership.

46. In relation to the complaint made by Mr. O’Hara concerning the large black tiles which had been placed on his porch, she stated that the complaint was logged on 27th November, 2015. Following that the locus was inspected and in January 2016, the tiles had been replaced with cement.

47. In cross examination, Ms. Moran accepted that in all the refurbished houses the tiles had been removed and had not been replaced, but, as stated, that was due to the requirement for providing disabled access to the property. If the plaintiff requested replacement of his tiles, the porch area would be inspected and a decision would be made following such inspection. She was not able to say what decision would have been reached. She could not say what would have happened if he had requested a closed in porch, as they did not put in such porches due to them being seen as a trip hazard.

48. Ms. Moran stated that she would always log all requests or complaints made by tenants, even though the Council may go back to them and say that they were not going to carry out the work requested by the tenant.

49. Evidence was by Mr. Noel McMahon, who was employed by the defendant as an Estate Officer in the Cranmore Estate. Previously he had been the clerk of works attached to the Capital Projects Department up to 2014. On 27th April, 2011, he had done a survey of the doors and windows in the plaintiff’s property. This had been done for the purpose of an upgrade of the doors and windows to double glazed PVC windows and doors. The plaintiff asked him could one of the sitting room windows be blocked up, as he had concerns about anti-social behaviour in the area. He also made a request in relation to solid panels in the hall door. Mr. Meehan stated that he referred these requests to Mr. McGarry, who was the Estate Officer at that time.

50. Mr. Meehan stated that the plaintiff did not ask him to move the front door out to the edge of the exterior porch. On 26th October, 2011, a contractor was due to start work on the doors and windows of the plaintiff’s property. The plaintiff had a number of requests in relation to sashes on certain windows and solid panels in the front door. Mr. Meehan forwarded these on to Mr. McGarry. As far as he was aware, Mr. McGarry wrote back to the plaintiff.

51. He recalled that at that time, the plaintiff had refused to allow the new windows to be inserted, notwithstanding that they were on site. The plaintiff was asked to attend a meeting, but the witness did not think that he attended the meeting. On the following day he met the plaintiff and it was agreed that they would fit a solid front door, but only some of the sashes on the windows. An agreement was reached that the works could be carried out. He met the plaintiff a number of times on the street after that. He never mentioned the tiles or the porch to him.

52. In cross examination Mr. Meehan stated that he had had a number of contacts with the plaintiff in relation to the upgrade of the windows and doors. He had first met him when carrying out his survey. He also met him when the windows and doors were being measured and he met him at the time that the windows were fitted. He conveyed the plaintiff’s requests in relation to the doors and windows verbally to Mr. McGarry. He denied that any request had been made by the plaintiff that he would move the door forwards to close in the porch. If such a request had been made of him, he would have forwarded it on in the usual way. He accepted that the ESB meter would have to be moved, if the front door was moved forward. The tiles would also have been removed so as to enable damp proofing to be laid.

53. Mr. Meehan confirmed that when the contractors had been on site on the plaintiff’s property, the plaintiff had the concerns as set out in Mr. McGarry’s letter dated 26th October, 2011. The witness confirmed that if the plaintiff had asked him in relation to relocation of the front door, he would have pointed out the difficulty in relation to the location of the ESB meter.
Legal Submissions on Liability.
54. At the conclusion of the case, Mr. Finlay S.C. made a number of submissions on behalf of the plaintiff. Firstly, he submitted that under the Occupiers Liability Act, 1995, the defendant was the occupier of the property under the Act, because the defendant had retained a sufficient level of control over the property, such that it was appropriate to impose a duty on them towards entrants onto the property. In this case, the plaintiff was not permitted to alter the floor in the porch, only the defendant could do that. In such circumstances the defendant was the “occupier” of the property within the meaning of the 1995 Act. The plaintiff was a visitor on the property and as such was owed the common duty of care by the defendant. It was submitted that for the defendant to provide a tiled surface on the exterior porch, which had a moderate risk of slipping when wet, established that the defendant had not complied with its statutory duty owed to the plaintiff under the 1995 Act.

55. Secondly, the plaintiff relied on the decisions in Siney v. Dublin Corporation [1980] IR 400 and Burke v. Dublin Corporation [1991] 1 IR 341. It was submitted that these decisions established that when a local authority made housing available under the Housing Act, 1966, there was an implied covenant that the property would be and would remain, fit for human habitation. It had been pointed out in the Burke case that although the Housing Act had set out in the second schedule thereto, twelve considerations as to the fitness of a premises for human habitation, the Court was not confined to those twelve considerations when considering if the house was fit for human habitation and whether there had been compliance with that implied covenant.

56. In particular, item 3 on the list in the second schedule was relevant. It provided:-

“Second Schedule
Matters to which a Housing Authority are to have regard in considering whether a house is unfit for human habitation….

3. Safety of staircases and common passageways including the state of paving in any yard or open space appurtenant to the house.”
57. It was submitted that this clause would include the plaintiff’s exterior porch. It was submitted that the plaintiff’s house was not fit for human habitation if there was an unacceptable hazard of slipping on the porch surface when wet.
58. It was further submitted that the obligation on the defendant under the covenant was absolute. It was not dependant on any complaints having been made by the tenant. The obligation to provide accommodation which was fit for human habitation rested on the defendant both at the commencement of the tenancy and during the tenancy. It was submitted that the test carried out by the defendant’s engineer had recorded a moderate slip risk on the tiles when wet, which meant that the house was not fit for human habitation at the time of the accident.

59. Thirdly, Mr. Finlay stated that the plaintiff also framed his action in negligence. However, he rested his submissions primarily on the first and second grounds set out above. If the plaintiff succeeded under grounds one or two above, then he would succeed under ground three as well. However, complaints may be relevant to the third ground. If the Court accepted that complaints had been made, this would increase the plaintiff’s cause of action in negligence against the defendant. However the making, of complaints, or their absence, would not effect the issue of liability under grounds one or two above.

60. In response, Mr. Bland S.C. on behalf of the defendant submitted that this was a case in relation to occupier’s liability. The law governing the liability of an occupier, was contained in the Occupier’s Liability Act, 1995. The old duties owed at common law to various categories of entrant, no longer applied. Counsel accepted that there could be more than one occupier and that the defendant could be classed as an occupier of the property. It all depended on the extent of control exercised over the property. The landlord and the tenant could both be occupiers of the property.

61. However, it was submitted that the tiles, which on testing were shown to have a moderate/low slip risk when wet, did not constitute a breach of the common duty of care owed by the defendant to the plaintiff under the 1995 Act. Counsel accepted that the defendant was the person in his capacity as landlord, who exercised control over this premises. He accepted that the plaintiff could not effect any structural changes to the premises without the defendant’s consent.

62. Counsel submitted that the plaintiff had to establish three matters in evidence. Firstly, he had to establish the mechanism of the accident. It was submitted that the plaintiff’s account as to how the accident occurred was totally implausible. It was submitted that his account that he had walked up to the front door, negotiated the key into the lock with his left hand and depressed the handle with his right hand and then slipped and fell forward into the hall, was totally implausible. It was submitted that that could not have happened in the manner described by the plaintiff. It was submitted that it was not possible to put the key into the lock, turn the key and depress the handle and slip and fall through the door. If the Court was satisfied that the accident could not have happened in the manner described by the plaintiff, that was the end of the case.

63. Secondly it was submitted that the plaintiff’s evidence in relation to the making of complaints, had been totally refuted by the strong evidence of the defendant’s witnesses. In the circumstances, it was submitted that the plaintiff had given false and misleading evidence in a material respect i.e. in relation to the making of complaints and as such his case should be dismissed.

64. Thirdly, it was submitted that the locus did not present a danger. It was submitted that the evidence of Mr. O’Brien had been that the tiles constituted a danger if they were glazed, or semi-glazed. It was submitted that the court must therefore hold that the tiles were glazed in order to impose liability on the defendant. Mr. O’Brien had stated that the defendant should have supplied unglazed tiles. It was submitted that the court should accept the evidence of the defendant’s engineer, to the effect that the tiles were unglazed. If this evidence was accepted, the finding on liability should be in favour of the defendant.

65. It was submitted that as the tiles had an average STV of 134, they did not constitute a danger in a small exterior porch, which the plaintiff had negotiated thousands of times over the years. Such tiles were ubiquitous in commercial and residential premises in Sligo and Galway. While the defendant could have put in a concrete surface, that would have been at the expense of aesthetics and concrete would have posed a danger due to dirt and moss.

66. It was submitted that the duty under s. 3 of the 1995 Act was not mechanical. It was a duty to take such care as was reasonable in all the circumstances, having regard to the care which it was reasonable to expect that the visitor would take for their own safety while on the premises. It was submitted that given the large area of the housing estate under control of the local authority, the issue of complaints in relation to the tiles was relevant. The defendant could not inspect all areas in the estate on a constant basis. The question of the plaintiff making complaints was relevant. It was submitted that the defendant’s evidence concerning this aspect was strong and that the court should find that no such complaints were made by the plaintiff. It was submitted that one had to look at the realities of life and at the burdens placed on the defendant in its capacity as the local authority and at the responsibility of the tenant to take reasonable care for his own safety. It was submitted that an STV on 134 was appropriate for use in an exterior porch. If these tiles were found dangerous, similar tiles would have to be removed from many shop and public house premises throughout the country.

67. In replying submissions, Mr. Finlay S.C. submitted that it had not been put to the plaintiff that he did not slip on the tiles as alleged by him. If the defendant had wished to make the case that he had met with his accident elsewhere, or in some other circumstances, they should have put that case squarely to the plaintiff. Secondly, Mr. O’Brien’s evidence did not rest on the question of the tiles being semi-glazed. His evidence was, that when the tiles had a medium or moderate slip risk when wet, such tiles were inappropriate for use in an external south west facing porch.
Conclusions on Liability
68. A lot of time in this case was taken up with an exploration of the issue as to whether the plaintiff had in fact made complaints to the defendant prior to the time of the accident, in relation to the slippery nature of the tiles on his front porch. While the plaintiff made the case, that he had made such complaints in the regeneration office and in particular to two women by the names of Kay and Sinead, this was hotly disputed by the defendants. Ms. Moran gave strong evidence that she had worked in the regeneration office for a considerable period and that no such complaints had ever been made to her personally. She further gave evidence that whenever a tenant made a complaint, it would be recorded prior to 2010 in manual form and subsequent to that date, on the computer. It would be forwarded on for further evaluation and action as necessary. She stated that having regard to the records available to the defendant, while the plaintiff had made a large number of complaints over the years, there were no recorded complaints in relation to the tiles on his front porch.

69. The plaintiff had also stated in evidence that he had made a request to have the front door on his porch brought forward to the exterior edge of the porch, so as to enclose in the porch. Again, this was denied by the defendant. However, Mr. Meehan did concede in cross-examination, that if the plaintiff had asked him about moving the front door forward, he would have indicated that that was not possible due to the fact that the ESB meter had to be accessible. This was exactly the reason that the plaintiff had stated that he was given by other persons, when declining his request to move the front door.

70. I do not think it is necessary to resolve this issue in order to reach a conclusion on liability in this case. While the defendant’s evidence was reasonably strong, the defendant did not submit in evidence any records either from the computer, or otherwise, to establish that the plaintiff had, in fact, made complaints, but had never mentioned the tiles. Nor did they call either of the two women identified by the plaintiff. However, I do not think the making of complaints is relevant, for the simple reason that these tiles were either safe for use in an exterior porch on a property that was facing in a south westerly direction, or they were not. The fact that the plaintiff may not have made any complaints about them, did not turn them into safe tiles, if they were otherwise unsafe for use in that location. The converse is also true, even if the plaintiff had made complaints about the tiles, due to the fact that he felt that they were slippery when wet, would not have rendered them unsafe, if in fact the tiles were perfectly safe for use in an exterior porch. Accordingly, I am not going to make any finding as to whether or not complaints of either a formal, or informal, nature were made by the plaintiff in relation to the tiles on his porch prior to the time of the accident.

71. Considerable time was also spent analysing the minutiae of the mechanism of the slip, as described by the plaintiff in evidence. Mr. Bland, S.C., submitted that it was simply implausible for the plaintiff to suggest that he had managed to insert the key into the lock with his left hand, had depressed the handle with his right hand and was moving through the partially open door towards the hall, when his left foot slipped causing him to fall through the doorway and into the hall. It was suggested that this was all the more implausible, due to the fact that there was a slight slope on the porch leading from the hall door to the concrete path beyond the porch itself. I do not think that it is possible to break down the mechanics of a slip and fall into neat sequences which lawyers, or others, may think convenient, at a considerable remove from the time of the accident. It would have been different if there had been medical evidence to the effect that such an injury could not have happened from the circumstances of the accident as described by the plaintiff. However, there was no such evidence.

72. Furthermore, as pointed out by Mr. Finlay, S.C., in submissions, no case had ever been put to the plaintiff, to the effect that his accident could not have happened in the manner alleged by him and therefore, must have happened at some other location, or in some other manner. In the absence of any evidence at all that this accident may have happened, either in some other way, or in some other location, I decline to make any finding that the plaintiff has put forward a fraudulent claim, or has given false and misleading evidence in this regard.

73. The plaintiff was also cross examined in relation to the amount of alcohol that he had consumed on the day in question. He candidly admitted that he had had five pints of beer prior to returning home. Having regard to the fact that this is a man who has worked in manual labouring jobs all his life, I decline to make any adverse finding against him having regard to the level of alcohol consumed by him that day.

74. The central issue is whether these tiles were appropriate for use in an external porch. On this issue, I prefer the evidence of Mr. O’Brien to that given by Mr. Duggan. It seems to me that having regard to the appearance of the tiles as shown in the close up photographs, taken at the time of the joint inspection on 7th November, 2017, there appears to be a difference between the surface of the surrounding tiles and the inner profile of the broken tile, shown in the front row of the tiles in photograph No. 2. It seems to be agreed between the engineers that there is a difference in colour and texture, between the interior of the broken tile and the surface of the surrounding tiles. I prefer Mr. O’Brien’s evidence that this was due to some form of glazing on the surface of the tiles, rather than being due to the effects of weathering, subsequent to the breakage of the second tile as shown in the photograph.

75. Furthermore, I accept the evidence of Mr. O’Brien that given that these are mosaic tiles and that they have an STV of 138 when wet and clean, and an STV of 133 when wet and dirty, thereby placing them in the moderate category of slip risk, this supports the contention that the tiles are probably glazed or semi-glazed as described by Mr. O’Brien.

76. Furthermore, the fact that there is very little, or no wear and tear evident on the surface of the tiles, either caused by pedestrian traffic, cleaning or weathering, seems to indicate that the surface of the tiles has probably been treated with some form of glazing.

77. Even leaving aside the issue as to whether these are unglazed or glazed tiles, I accept the evidence of Mr. O’Brien that providing tiles on an exterior south-west facing porch, which have an average STV of 134 when wet, is inappropriate for use in such circumstances. It seems to me that if tiles were to be used in such a location, they should have been unglazed tiles, which had ridges or dimples thereon. While these tiles may have been thought suitable when the houses were constructed in 1977, it is clear that their use has all but disappeared in the estate. Mr. O’Brien found only nine houses out of a total of 62 inspected, with such tiles. I appreciate that Ms. Moran stated that this was due to the fact that when the houses were refurbished, the porch area was raised and a concrete surface was used so as to enable disabled access to the property. Nevertheless, it seems to me that current safety requirements, mandate that these tiles are inappropriate for used in an exposed porch.

78. The evidence of Mr. O’Hara was also interesting. While the defendants concentrated on the fact that when he made complaint about the tiles on his property, they were quickly replaced with a more suitable surface. This ignored the fact that when the original mosaic tiles had been replaced in or about 2010, the defendant had put in tiles which, even on their own admission, were totally unsuitable, as they were tiles for use in an interior bathroom. Thus, it would appear that whoever directed that these tiles be put into his house in 2010, did not have any appreciation as to the correct tiles to use in an exterior location. This must raise the inference that perhaps those who had charge of the estate at or about that time, did not have a proper appreciation as to what type of tiles were adequate for use in exposed porches.

79. I am satisfied that in all the circumstances, these tiles were inappropriate for use in an exterior porch. Having regard to the terms of the tenancy agreement entered into between the plaintiff and the defendant, whereby the defendant retained complete control over the premises and in particular in relation to making any alterations thereto, the defendant has to be seen as the occupier of the premises within the meaning of the Occupier’s Liability Act 1995. The plaintiff, as tenant to the defendant under such terms, was a visitor on the property within the meaning of the 1995 Act. I am satisfied that the use of these tiles at this location, constituted a breach of the common duty of care owed by the defendant to the plaintiff under the 1995 Act.

80. I am further satisfied that the use of these tiles also rendered the house unfit for human habitation and as such the defendant was in breach of the implied covenant in such tenancy agreements, as found in the decisions in Siney v. Dublin Corporation and Burke v. Dublin Corporation. In these circumstances, the defendant is liable to the plaintiff for the injuries sustained in this accident.

81. Finally, there was a plea of contributory negligence, to the effect that the plaintiff had been negligent in removing the mat from the porch on the morning of the accident. I accept the plaintiff’s evidence that on leaving the property in the morning, he noticed that the mat was very wet and on that account, he took it up and placed it on his side gate to dry. I accept his evidence that when he returned home, someone had removed the mat from his gate and for that reason he proceeded onto the porch, without there being any mat thereon. I do not think that he can be held guilty of contributory negligence in these circumstances.
Evidence on Quantum
82. The plaintiff stated that on the day after the accident, he underwent an operation wherein plates and screws were inserted into his left ankle joint. The ankle was placed in a plaster cast. He was discharged from hospital a few days later. He went to his daughter’s house in Manorhamilton to recuperate. After a few weeks, he returned home. He was essentially house bound for the initial period. He stated that the pain was very bad during that time and he required a number of painkillers. The wound at the surgical site became infected, necessitating that he return to hospital to have dressings changed on a frequent basis.

83. The plaintiff stated that in or about July 2014, he had been walking on the footpath with a walking stick, when his left foot slipped off the path and he turned on his ankle. His ankle was quite sore. He was worried that he may have caused further damage to the ankle, so he attended at the hospital, where an x-ray was taken. He was reassured that there was no bony injury and no additional damage to the ankle.

84. The plaintiff stated that prior to the accident he enjoyed walking and doing D.I.Y., such as painting and decorating around the house. He was not able to do that after the accident. By May 2015, he still had pain in the ankle. Some of the metal work was removed from his ankle in November 2015 and further metal work was removed in August 2016. The removal of the metal plates did help somewhat. There was some improvement in his pain.

85. In June 2016, he complained of pain when walking on uneven ground and in cold weather and when ascending steps. He still walked with a stick. He was told by his surgeon that he had developed osteoarthritis in the joint. Removal of the second plate in August 2016, helped his ankle pain, as his ankle was no longer as big as it had been. However, he still had pain in the ankle joint. The ankle would swell in cold weather. There was still stiffness in the ankle with limitation of movement. He has been given one painkilling injection, which had helped. He was awaiting a further injection in the near future. At the present time, he described his ankle as “achy and painful”. There was pain when walking up hill, or going up steps, or walking on uneven ground. He had not been able to work since the accident. All his previous work had been physical work.

86. In cross examination, it was put to the plaintiff that he had never mentioned the subsequent accident, when he slipped off the pavement in June 2014, to his own doctor, or to the defendant’s doctor, nor had he mentioned it in his P.I.A.B. application form. The plaintiff stated that he had not mentioned it to these people, due to the fact that he had gone to hospital and had his ankle x-rayed and had been told that there was no further damage done to the ankle. He said that in these circumstances, he did not see it as a subsequent injury as such.

87. The plaintiff stated that he continued to use a walking stick when walking on uneven ground, or when ascending steps. In relation to seeking employment, he stated that he had looked at advertisements in the newspaper. He had done that before the accident as well. He was looking for suitable lighter work.

88. Evidence was given on behalf of the plaintiff by Mr. William Gain FRCSI. He first saw the plaintiff on 18th May, 2015. He had a pilon type fracture of the left ankle joint. This was worse than the usual type of fracture, as it involved the tibia and went into the ankle joint itself. The fracture was slightly displaced. Surgical treatment was carried out, which involved the insertion of bilateral plates and screws. The ankle was placed in a cast for ten weeks. There had been wound infection at the surgical site and antibiotics and dressings were applied. The fracture itself united satisfactorily.

89. The plaintiff complained of stiffness and pain especially on uneven ground and when ascending steps and stairs. Due to continuance of his symptoms, one of the plates was removed in November 2015. This did not have a major effect. The plaintiff did note some improvement, but he still complained of pain and stiffness in the ankle. Walking long distances, walking on uneven ground or ascending steps continued to cause pain and discomfort. He continued to have limitation of movement. X-rays showed narrowing of the talotibal joint, which was indicative of osteoarthritis. There were signs of early osteoarthritis in the ankle joint. This was a known risk of this type of injury. His opinion at that time, was that the plaintiff was not fit for heavy work.

90. The plaintiff had a fibula plate removed in August 2016. This had given the plaintiff some improvement in his position, but not very much. When reviewed on 12th October, 2016, the plaintiff stated that he continued to experience pain on uneven ground and on steps. He remained unfit for work as a paving worker. There was slight limitation of movement of the ankle joint. X-rays revealed evidence of osteoarthritis and also evidence of osteopining, which indicated that a person was not fully placing weight on their foot, leading to thinning of the bone.

91. When reviewed on 20th June, 2017, the plaintiff’s symptoms were still the same, but the episodes of severe pain were less frequent. He still complained of ankle swelling and pain. Examination revealed that the range of movement of the ankle joint was satisfactory, except for dorisflexion and the sub-talor range of movement was also slightly reduced. There was also tenderness at the joint. In terms of future treatment, Mr. Gain was of the opinion that injection treatment in the form of steroid and/or a lubricant, may give relief for a period. They would also enable the doctors to tell if the pain was coming from the ankle joint itself. He was due to have this injection treatment in the next few months in 2017. In the longer term, if the plaintiff continued to have problems, he may need surgery to fuse the ankle joint due to osteoarthritis. He put the risk of the plaintiff requiring such a fusion operation at 20/30%. If this arises, it will be known in the next two years. In terms of work, he was of opinion that the plaintiff was fit to return to work, but only at less physical jobs.

92. In cross examination, Mr. Gain accepted that the fusion operation would only be a last resort. It was not common treatment. He stated that he had done two in the last 2/3 years.
Conclusions on Quantum
93. The plaintiff in this case is almost 50 years of age, having been born on 27th February, 1968. As a result of the accident on 17th November, 2013, he suffered a pilon fracture to his left ankle. This required surgical fixation. Since that time, he has had two further operations to remove metal work from the ankle joint. While these operations have improved his condition, in particular they have resulted in a reduction in size of the ankle joint itself, the plaintiff continues to experience pain and discomfort in his ankle on a daily basis.

94. I accept the plaintiff’s evidence that he continues to experience pain in the ankle joint, in particular when standing for long periods, when walking on uneven ground and when ascending steps and stairs. He is required to use a stick when traversing such areas. In terms of the future, there is evidence that he has developed mild to moderate osteoarthritis in his ankle joint. There is also evidence of osteopenia. It would appear that the onset of arthritis is a permanent feature and there is some risk in the order of 20/30%, that he may require fusion of the ankle joint in the future. However, given the percentage chance of him needing that operation, the court has to conclude that on the balance of probabilities he is not likely to require an ankle fusion operation.

95. Mr. Gain is of the view that the plaintiff will require injection treatment to his ankle on an ongoing basis. This will provide temporary, though not permanent, relief. It will have to be repeated over time. In terms of his capacity for work, it has to be noted that the plaintiff had been unemployed for an unspecified period of time prior to the accident. He has not worked since the accident. Mr. Gain is of the view that while he is fit to return to employment, he is only fit for light duties. There is no specific claim for loss of earnings, either in the past or into the future, but it is something which the court can take into account in its award of general damages. The plaintiff also remains disabled in the recreational aspects of his life, in particular, he is unable to pursue his pre-accident hobbies of walking and D.I.Y.

96. Taking all of these matters into account, having regard to the surgical treatment of the plaintiff’s, symptoms and disability to date, I award the plaintiff €50,000 for general damages to date. Having regard to the plaintiff’s age, the onset of arthritis in the ankle joint and his requirement for future injection treatment, I award the plaintiff €55,000 for general damages into the future. To this must be added the agreed sum for special damages of €650, giving an overall judgment in favour of the plaintiff in the sum of €105,650.