Supreme Court: Woman unlawfully evicted by local council entitled to damages

About this case:

• Judgment:
  External link

In the joint judgment of Justice Clarke, Justice Laffoy and Justice O’Malley, the Court declared that the decision of the High Court judge to withhold relief despite a finding of illegality could not be justified, as the woman and her family had been deprived of fundamental rights provided for in the Constitution and the European Convention on Human Rights

Background

Ms Ann Moore and her family were tenants of Dun Laoghaire Rathdown County Council in a property in Loughlinstown since 1993, however there was a history of significant rent arrears leading to a series of proceedings in the District Court over the years.

In December 2008, Dun Laoghaire Rathdown sought and obtained an order for possession from the District Court sitting in Dun Laoghaire. There was then a degree of engagement between the parties and it was not until the earlier part of 2010 that it was sought to obtain a warrant for possession directed to the Sheriff to give effect to the original order for possession of the District Court.

The relevant provisions of the District Court Rules required, in the event that a warrant for possession was sought more than six months after the original order for possession, that there be an application on notice to the tenants concerned – however no such application was ever brought.

High Court

In these proceedings, the Moore family sought judicial review arising out of their eviction from what was their family home. In the High Court, Mr Justice Michael Peart accepted that there was no lawful basis for the warrant of possession against the Moores.

The reason for the finding of unlawfulness was that, according to the District Court Rules, a warrant for possession could be issued at any time within six months of the making of an order for possession but, importantly, after six months such a warrant could only be issued after an application to the Court by the plaintiff on notice to the defendant.

In the High Court it was accepted that the warrant on foot of which the Moores were evicted did issue well outside the six-month period referred to in the rules and, importantly, issued without any application on notice as required by O.47, r.15.

Thus, Justice Peart accepted that the warrant was unlawful, and the Moores had been subjected to an eviction on foot of an unlawful warrant.

Notwithstanding this finding, Justice Peart found it appropriate, in the exercise of what he considered to be his discretion, not to grant any relief by way of judicial review

Supreme Court

Ms Ann Moore appealed to the Supreme Court against Justice Peart’s decision not to grant any relief by way of judicial review.

Agreeing with Justice Peart’s finding that the warrant was unlawful, the Supreme Court emphasised that rules of court are a form of delegated or secondary legislation and thus form part of the law (as per Shell E & P Ireland Limited and ors v McGrath and ors 1 IR 247).

It followed that the requirement that a tenant be put on notice for an application for a warrant for possession sought outside the six-month period was a binding legal requirement.

Further, the Court has a role in “protecting the rights of tenants which may not be bypassed by the expedient of obtaining a warrant for possession without a court application on notice”.

The Court stressed that the result of an application under O.47, r.15 of the District Court Rules has the potential to have a significant impact on the rights of tenants for it creates at least the possibility that the tenant may become entitled to a fresh assessment on the merits – consequently, depriving a tenant of the opportunity which an application on notice gives them amounts to depriving a tenant of a significant entitlement which the law confers.

According to the Supreme Court, the decision of Justice Peart confirmed that Ms Moore had been deprived of that entitlement, which should be seen in the context of the protection of tenants’ rights in respect of their homes under the Constitution and the European Convention on Human Rights.

The Court held that this was a case where “there was a complete failure to invoke the proper jurisdiction of the District Court resulting in a fundamental denial of fair process in the issuing of the warrant”. The fact that the Moore’s were deprived of the opportunity of seeking to persuade the District Court not to allow for the late issuing of the warrant was not “simply a factor to be taken into account in the balance” – rather it was an issue which rendered the warrant “unlawful in a most fundamental way”.

The Supreme Court held that there were “no factors which would go close to providing a justification for the Court not granting relief in the circumstances of this case”, therefore the Court was not satisfied that “declining to make any order was within the range of permissible courses of action which were open to the High Court”

In those circumstances, the Court held that the proper course of action to adopt was to make a declaration that the eviction of Ms Moore was unlawful and to determine that Ms Moore was entitled to damages at the level of principle.

The Court concluded that the amount of damages would be decided at a later date, adding that it would hear counsel on the question of whether the arrears of rent owed by the Moores to Dun Laoghaire Rathdown should be taken into account in the assessment of damages.