BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
High Court of Ireland Decisions |
||
|
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McConnell & Anor v. Dublin City Council & Ors [2005] IEHC 21 (28 January 2005) URL: http://www.bailii.org/ie/cases/IEHC/2005/H21.html Cite as: [2005] IEHC 21 |
||
[New search] [Help]
Neutral Citation No: 2005 [IEHC] 21
THE HIGH COURT
DUBLIN
Record No. 2003/244JR
BETWEEN/
DAVID MCCONNELL and THOMAS (NIKKI) MCCONNELL
(SUING BY HIS FATHER AND NEXT FRIEND DAVID MCCONNELL)
Applicants
-and -
DUBLIN CITY COUNCIL DISTRICT JUDGE FITZPATRICK
(JUDGE OF THE DUBLIN METROPOLITAN DISTRICT COURT), IRELAND AND THE ATTORNEY GENERAL
Respondents
MENTION BEFORE MR. JUSTICE T.C. SMYTH HEARD ON FRIDAY, 28TH JANUARY 2005
THE HEARING COMMENCED, AS FOLLOWS, ON FRIDAY 28TH JANUARY 2005
MR. CONNOLLY:
May it please the Court. On behalf of Dublin City Council I ask for my costs, costs to include written submissions. I want to mention that there was an earlier Costs Order of Quirke J. in relation to the late amendment of the Pleadings, which is an Order of 29th November 2004. He made an Order for costs, but he put a stay on that pending the determination of the action. I don't know whether your Lordship thinks it is appropriate to lift that stay or whether the stay withers by definition because the action has been determined, but I am drawing that to the Court's attention as well.
MR. McGARRY:
I have a similar application, my Lord, on behalf of the State Respondents in the same terms.
MR. CALLANAN:
May it please your Lordship. obviously I have been beaten fair and square on the diverse issues that I raised but nevertheless I am making an application for my costs to your Lordship. Just before I get to that, Mr. Connolly has raised the issue of the order of Quirke J. in which he allowed me make the amendments in relation to the Convention of Human Rights but I would certainly say anomalously awarded the costs of that application against me and I know Mr. Murphy, my solicitor, has been looking to take up that Order and clearly it is been perfected but it has only been perfected in the last couple of days and certainly it is my intention to appeal that Order. I don't know how it ought to be dealt with logically. I suppose effectively it is a free standing order. I think it would follow that the stay ceases with the final determination of the matter at hearing before your lordship. So I am not sure, just as a matter of the logic of the thing, that it necessarily requires a further order, but just so that Mr. Connolly is aware of that. Obviously, I did propose to appeal that Order in relation to the costs. The basis, my Lord, of which I say that in what are very exceptional circumstances, the Applicant ought to be awarded his costs in spite of having failed on the case he has made, is that I say in the first case, it was a case that was brought bona fide by Mr. McConnell in defence of a family interest, an interest of the unity of his family and of his family home and that he did so bona fide. I don't think it has been suggested that he did so otherwise than bona fide.
I say secondly to award the costs against Mr. McConnell, or to leave him indeed to bear his own costs, would be to impose a hardship which would be unwarranted. Obviously he is simply an employee, in fact an ordinary employee, in fact an employee of the City Council itself but obviously a man of limited resources.
The third matter that I urge on the Court is that this is a matter of law of public interest which required to be determined. In that regard, the Court will recall there was reference in the course of the case to the case stated in the matter of Dublin City Council -v- Jeanette Fennell, which I referred to and Ms. O'Farrell rightly corrected me for what I said it was about and she handed in, in fact, the text of the case stated. That was a case stated that is in fact now listed for hearing in the Supreme Court on 12th April. The reason I refer to it is that if one goes through the case stated, one can discern the extent to which the City Council acknowledge that the issue in that case is a matter of public interest of which it is desirable to have a determination.
Now the issue in that case, and Ms. O'Farrell was absolutely right about that, is that it is a narrow subset of an issue which arose in this case. It was over whether, under Section 62, the District Court or in this case the Circuit Court, Judge Linnane in the Circuit Court, is restricted in relation to the evidence that she can hear as to whether she can entertain evidence of the circumstances which gave rise to the determination of the tenancy by the local authority, by the housing authority in question (in that case also the City Council) or whether she is constrained to material to have the formal proofs established before her. As your Lordship is aware, the case that the Applicant made to your Lordship really is constitutional and in relation to the European Convention of Human Rights was very largely premised on the proposition that the existing view of Section 62 was correct and that both the District Court and the Circuit Court on appeal were limited in the ambit of the matters on which they were required to adjudicate under Section 62. I didn't rule out the possibility that one could take a different view of Section 62 but I think on the authorities and on the face of the Section, it appeared hard to argue that the District Court or Circuit Court on appeal had the entitlement to, as it were, go into the merits or the reasoning behind the decision of the particular housing authority to terminate the tenancy. In the consultative case stated itself in Fennell, which is dated 26th November 2004, at paragraph 8 in which the questions on which the opinion of the Supreme Court is sought are set forth.
MR. JUSTICE SMYTH:
Paragraph?
MR. CALLANAN:
It is paragraph 8. It is the penultimate page of the case stated. Sorry, I should have brought a copy
MR. JUSTICE SMYTH:
No, I have it.
MR. CALLANAN:
It is not easy to locate. Your Lordship will see that there are points of claim and points of reply are appended. There is the text of the case stated itself.
MR. JUSTICE SMYTH:
This is in the point of reply, is it?
MR. CALLANAN:
It is in the consultative case stated about five pages in. It is page S. The Court will see just before the matter ... (INTERJECTION)
MR. JUSTICE SMYTH:
"Counsel on behalf of the Respondent....", yes.
MR. CALLANAN:
Yes.
" ..requested that I refer the questions of law arising on this appeal to the supreme Court in respect of the European Convention of Human Rights Act 2003 by way of case stated for the determination by the Supreme Court. Having considered the submissions of counsel for both parties and the significance of the issue raised, I accepted the request that a case be stated to the supreme Court for its determination on terms that the cost of such case stated be borne by the Respondent and I adjourned the proceedings herein pending the determination of the case stated."
Now that obviously is open to the Judge of the Circuit Court stating a consultative case for the Supreme Court to impose, to decide the terms on which he does so and obviously that doesn't in any way inhibit this Court or impose an impediment on this Court in relation to any matter at all, but it is quite clear that that was a case stated at the request of the City Council. It is quite clear that in the justice of the case, there was no great issue, but that it was a matter of public interest and it doesn't appear that, and I don't understand that there was any particular issue on the part of the City Council, that it would be a term of a case stated that the costs would be borne by the City Council because obviously the City Council has a very considerable number of such cases and this is an issue that has been, I suppose, frequently canvassed in a cursory sort of way, but not fully argued in modern times, in recent times, and certainly not fought out under the Convention. Just to say in the event that the judgment of this Court is appealed, and I anticipate it will be appealed, obviously one would hope to have both matters listed together but for the moment I am concerned at the present time to base my application that the Applicant recover his costs on the basis of the public importance of the matter that arises and the undoubted interest that the City Council has as the housing authority for the largest conurbation in the country in having that matter determined. May it please your Lordship.
MR. JUSTICE SMYTH:
Mr. Connolly, do you want to say anything about this latter matter, the case stated in which the Corporation would appear to have consented or been privy to an acceptance that guidance from the Courts was necessary on the ECHR?
MR. CONNOLLY:
What I can say on that is the fact that they took an interest in those proceedings as being a means of bringing clarity into an issue doesn't mean that in every other likely case, the same considerations apply. They may well have wanted to have that matter to expedited in the Supreme Court and they may well have an interest in those proceedings but that, in my respectful submission, has nothing to do with whether these proceedings, which bear, or may not bear some resemblance, should not follow the normal cost considerations.
In those proceedings, as in these proceedings, there is an issue as to whether the European Convention of Human Rights Act can apply because in this case the events preceded the coming into force of the Act and I understand that Ms. O'Farrell is in that other case, as I understand a similar consideration arises. But what I do say in this particular case is that there are a number of things that this Court can bear in mind that don't necessarily give rise to the suggestion of public interest concerns that are being urged on the Court by Mr. Callanan.
Firstly, this case was decided very much on its own particular individual facts. We say that there is no public interest issue that really emerged from this case. The law is certain and we say that the Act simply didn't apply to events before, that that was already quite clear from a number of judgments.
More to the point, we say that there isn't a large body of persons in the same category or in the same circumstances as Mr. McConnell and his family. This case was a case to be decided on its own individual facts. This was someone who actually knew of the reasons why the Notice to Quit was served and that was a very important part of our case and I say also the determination of this Court and the case was determinable largely on that aspect of the case.
So it is not correct to say that there is some area of the law which was grey and required clarity and in some way by bringing this case, Mr. McConnell has brought clarity into a grey area. That is not the case. The law is certain and the case was something that was decided on its own particular circumstances.
There is one matter, and it is important for the City Council to say this, that the Community Law Centre is in fact funded by Dublin City Council, who are the parties bringing the action ... (INTERJECTION)
MR. CALLANAN:
I don't think that last point is correct. I suppose Mr. Connolly can say that we knew the reasons, but I suppose the nub of the complaint is that I have not had an opportunity to challenge, in a judicial form, the reasons and it couldn't be maintained that there aren't a very large number of people who would be affected by any decisions of the Courts in relation to Section 62 and it would appear inherently that the two issues run in tandem. This is a subset of the issues raised, or Fennell, rather, is a subset of the issues raised in these proceedings. If one turns to the points of claim, one can see what the Appellant seeks is a substantive hearing, having regard to the proportionate entitlement of the Respondent to determine her tenancy. So it is a portion of the issues that this Court had to address, namely whether, if one gives, as it were, an activist interpretation to the provisions of the Convention that one can, as it were, on a strained statutory interpretation of Section 62 hold that a Judge is entitled to address the merits. I would have thought, obviously
Mr. Connolly is understandably opposing my application for costs, but one would have thought that it was in the interests of the City Council as well as serving a larger public interest that these issues are determined in tandem. May it please your Lordship.
MR. JUSTICE SMYTH DELIVERED HIS RULING AS FOLLOWS:
MR. JUSTICE SMYTH:
On the question of costs, costs normally follow the event unless there is good and proper reason why that rubric shouldn't be followed. Now in this case, there were two or three broad strands to the case. There was the question of the facts of the particular case. There was then the question of the statute, the constitutionality and subsequently then the European Convention on Human Rights dimension. Now it seems to me that on the first three of these, the facts are peculiar to the case and insofar as Section 62 had been dealt with, it had been dealt with by the Supreme Court already, and that in the constitutional context, the dimension of the European Convention on Human Rights have not been, because it just didn't arise in the earlier litigation.
It seems to me that notwithstanding what has been urged on behalf of the Applicant, the fact that a person is of limited resources doesn't (a) inhibit them coming to Court or (b) a liability attaching to costs, which may never be discharged but that is neither here nor there so far as the Court is concerned after the Order is made.
Insofar as the public interest is concerned, if there was a public interest, it was a public interest accompanied by a private interest consideration driven by that and I understand that there is nothing inherently wrong with that, but it gets away from the general proposition that the litigation advocated on the basis of public interest only should meet with a different approach to the question of costs.
As regards to the question of the case stated, which was signed as of 26th November 2004, the Order of Quirke J. was of 29th November, which was literally two or three days later, and may have been taken either on advice or with the probability that the case stated would in some way pave the way. I am not saying that it was a knee-jerk reaction. It was a matter that the Applicant wished to have litigated and having done so, I came to the view that the Act didn't apply.
Whether there are a great number of cases dependent on it is not really a question for determining the costs in this particular case. The facts of the Fennell case, where they were disclosed in terms of the case stated, that is a matter for adjudication directly by the Supreme Court and it would be impertinent for me to in any way transgress upon the course of that litigation.
It is not quite right for Mr. Callanan to say that there is no right to challenge the reasons. I have dealt with this in the judgment. There has been a right to challenge the reasons in Judicial Review. That remains. It was there at the outset and remains throughout. If there was any concern in that before the litigation that led to the matter going into the Circuit COURT, the judgment of the Supreme Court (Finlay C.J.) in The state (O'Connell) -v- Fawcitt [1968] IR 362 at 379, it is coming from a different angle in relation to a criminal trial. But what is clearly stated there is that if one wants to arrest the litigation (in that context of a criminal trial) in the context of the present proceedings is a somewhat summary form of jurisdiction that is provided for in the Housing Act of 1966, then the appropriate course seems to have been to take an order by way of prohibition before the matter gets, so to speak, "out of the stocks" at all.
Now whether I be right or wrong in that, it seems to me that the preponderance of this case did not hinge around the Convention and the European Convention of Human Rights Act. That was very much an entitlement (if a belated thought) of the Applicant. I have ruled on that as the Act not being retrospective. That decision, of course, is open to review by the Supreme Court, but it seems to me that, at most, that could have contributed to something of the Order of 20% of the deliberations of the High Court at the very very most so my order in regard to costs is that costs will follow the event in full in the normal way, but should I be wrong in that and the matter is to go elsewhere, I express the view that had I been awarding costs with a deduction factor, it would be of the order of 20% and no more.
Now as regards the Order of Quirke J., in a sense it does fall for determination of the application in this Court, but in case there is any doubt about that, I will lift the stay that has been put on the Order in that regard and that the matter flow in the normal course. Now the parties have had the judgment. They have all the documentation, because it is a documents case only, and if there is a stay being sought, the stay would be limited to ten days from today's date so that the matter doesn't drag its' feet and makes its way with expedition to the Supreme Court so that if there is an anxiety or a concern that the matter might be taken either in conjunction with, or immediately after, the Fennell case, the Supreme Court may have an adequacy of time, I hope, in which to consider whether one should follow the other.
MR. CALLANAN:
Yes, I was going to look for a stay and in fact obviously the sooner we get the order, the better, because I think the Fennell matter is in for mention on 4th February. I think it is in for mention, it is in for hearing on 14th April. I thought it was in for mention.
MR. JUSTICE SMYTH:
The order will hopefully be available to you on Tuesday or, at latest, Wednesday of next week.
MR. CALLANAN:
That is perfect because I think it is in for mention on 4th February.
MR. JUSTICE SMYTH:
You are perfectly entitled to challenge any decisions I made, that is what the system is about, or certainly it is designed to have that facility, but what I don't want to do is have the matter drag and get caught in a limbo situation so that would be the Order of the Court
MR. CALLANAN:
May it please the Court.
END OF HEARING
APPROVED JUDGMENT OF SMYTH J.
