[2016] IEHC 36
THE HIGH COURT
JUDICIAL REVIEW
[2014 No. 264 SP]
BETWEEN
MICHAEL DOYLE
APPLICANT
AND
THE PRIVATE RESIDENTIAL TENANCIES BOARD
RESPONDENT
NOTICE PARTY
JUDGMENT of Ms. Justice Baker delivered on the 2nd day of February, 2016.
1. This judgment is given in the application by the notice party, Tom Kavanagh, (hereinafter “the receiver”) that he be awarded his costs against the applicant in the statutory appeal in which the applicant was unsuccessful in setting aside the finding of the respondent, the Private Residential Tenancies Board (hereinafter “the PRTB”). Judgement in the substantive action was delivered on 10th November, 2015, 2015 IEHC 724.
2. I have already ordered on the 18th November, 2015 that the respondent is entitled to its costs of the statutory appeal against the applicant.
3. Briefly, the applicant was a tenant of certain residential premises the subject matter of a dispute in which the Tenancy Tribunal of the PRTB delivered its determination on 13th June, 2014. As a result of that determination the applicant was ordered to pay a substantial amount of arrears of rent and ordered to vacate the premises by the date therein identified.
4. The interest of the landlord in the premises was held by a limited liability company, and the receiver was on 22nd March, 2013 appointed receiver over certain assets of that limited company, including the residential premises the subject matter of the dispute before the Tribunal.
5. The statutory appeal had an unusual procedural history and the applicant did not avail of the special statutory mechanism mandated by Order 84 C of the Rules of the Superior Courts for the making of an appeal on a point of law against a decision of the Tribunal. An order by Judge Binchy made on 18th May, 2015 regularised the pleadings to some extent and permitted the respondent and the notice party to file a statement of opposition as if the proceedings had been properly constituted. The use of the incorrect procedure resulted in the special summons coming on for hearing initially before the Master of the High Court, and further difficulty was caused by the fact that the proceedings were struck out by the Master of the High Court on 10th October, 2014 due to the non-attendance of the applicant.
6. The notice party claims all reserved costs and the costs of the hearing.
7. Counsel for the notice party argues that under Order 84 C he was a necessary party to the proceedings and had a legitimate interest to protect which was different to that of the PRTB, and that he had a duty to protect the tenancy. She also argues that as Binchy J. on the 18th May, 2014 directed that the matter be transferred from the Chancery list to the non-jury list, and gave directions, including directions for the service of a notice of opposition by her client, it would be invidious to deny him the costs of so doing.
8. She also argues that she made submissions at the hearing in the High Court which had not been made by the PRTB, primarily arguments with regard to whether the receiver was to be treated as a landlord, as the applicant had raised the question of the identity of the landlord before the adjudicator at first instance, and had subsequently sought to raise it in the High Court. In my judgment I expressed the view that the matter was not, and could not have properly been, before me.
9. For the reasons that I now outline I consider that the notice party should be granted its costs of part only of the appeal, as will appear from my reasoning, General discretion with regard to costs of the notice party
10. Counsel for the notice party relies on the decision of the High Court in O’Connor v. Nenagh Urban District Council and Dunnes Stores (Notice Party) [2002] IESC 42 where the Supreme Court did give the notice party its costs, but it seems to me that that case does not offer much assistance in that the notice party was a cross appellant and was in that context entitled to participate fully in the appeal. Furthermore the Supreme Court was considering the question of whether the High Court had correctly exercised its discretion in granting costs, and the Supreme Court was in turn constrained in the approach that it could take by the fact that, the exercise was one for the discretion of the High Court.
11. The judgment of Clarke J. in Usk and District Residents Association Ltd. v. Environmental Protection Agency and Ors. [2007] IEHC 30 is authority for the general proposition that costs, including the costs of a notice party, will generally follow the event, and also the dicta of Clarke J. at para. 5.5 of that judgment to the effect that a notice party that had defended its legitimate interests was entitled to costs.
12. However the balance of para. 5.5 bears repeating:
“I should, however, note that there may well be cases where it would be appropriate for notice parties (who are not as intimately connected with the issues as in this case) to consider whether it is necessary to participate, or at least participate fully, in judicial review proceedings. The mere fact that the party may have a sufficient interest so as to make it legitimate that they be placed on notice of the proceedings does not, of itself, necessarily carry with it an entitlement to that party to an unquestioned order for costs in the event of the proceedings being successfully defended. The extent to which such a notice party may be entitled to some or all of the costs of successfully supporting the defence of the application, will depend on all the circumstances of the case and, in particular, the extent of the interest of that party in the issues which are the subject of the judicial review application and the extent to which it may be regarded as reasonable for that party, in those circumstances, to independently oppose the application. Having regard to those principles it does not appear to me to be appropriate to diminish the entitlement of Greenstar to costs on the facts of this case.”
13. In the light of that dicta I consider that the costs of a notice party are not necessarily always to be treated as costs which “follow the event”, and the matter of costs will depend on the degree of participation of the notice party and whether that was justified. This is because a statutory appeal is not an inter partes action and the court is constrained in the approach that it may take to the appeal process in that it is confined to questions of legal construction, whether the approach of the statutory body was correct, whether it had sufficient evidence before it to come to the conclusion that it did, and the High Court may not on a statutory appeal on a point of law against a decision of the PRTB make any primary findings of fact.
14. This means, in practice, that the primary defender of the decision of the Tribunal is the PRTB, and a notice party does not have any central role in such an appeal. He or she might in that context have limited scope to make submissions, and while a notice party may be entitled to urge the court to take a particular approach, the argument of the notice party must, to a large extent, be constrained by the reasons and reasoning of the Tribunal in its primary decision and the basis for that decision.
15. As such, it seems to me, that a notice party will often at the hearing of a statutory appeal make arguments which were open to the PRTB to make, but which were either not canvassed at all by it, or were canvassed with a different emphasis. The question of the emphasis, or of approach is, in my view, a key to considering the role that a notice party takes in a statutory appeal.
16. I accept that there may be cases where a notice party does have a particular reason to engage with a statutory appeal, and Clarke J. identified that there may exist a spectrum at different points on which the court may engage a different approach, and may for example consider whether a notice party was a necessary party. That dicta suggests to me that the court is entitled to consider not merely whether the notice party was a necessary party in a procedural sense, but whether the notice party was required to engage with the proceedings as a litigant.
17. I do consider that the receiver had a financial or commercial interest to protect, but I consider that the question of whether that entitles him to costs is less straightforward than is submitted by counsel for the notice party. I consider that the most appropriate case to govern or guide my decision is the decision of Finlay Geoghegan J. in Treasury Holdings & Ors. v. NAMA & Ors. [2012] IEHC 518.
18. At para. 20 she asks whether the notice party was a “necessary party”:
“In all the circumstances of this application, I have determined that there should be no order for costs as between KBC and the applicants. I do so, firstly, by reason of the fact that KBC was not a necessary party to the proceedings; it sought to be joined and was permitted to be joined for the purpose of protecting its own commercial interests. It was not necessary for KBC to participate in the first five issues identified at para. 15 of the judgment of 31st July, 2012, [2012] IEHC 297, all of which were public law issues or a private law contractual issue which concerned NAMA and not any alleged arrangements with KBC. Insofar as KBC wished to address the Court on the sixth issue, whilst it was reasonable that KBC be permitted to do so, it does not appear to me to follow that they should be entitled to an order for costs against the applicants of defending the substantive proceedings, where the respondents were fully participating and represented and KBC decided that it wished to also participate in opposing the application in the protection of its own commercial interests.
19. Part of the reasoning of Finlay Geoghegan J. was that the notice party had itself applied to be joined in that case, but at para. 20 she asks, what I consider to be the central question, namely whether a notice party was a “necessary party”. I consider the question to be whether the notice party is a necessary party as a litigant, and accordingly the question is not merely one of whether a notice party had legitimate financial or economic interests to protect, as nearly all notice parties will be in that position, but whether it had interests to protect which were different from those of the Tribunal.
20. In many cases a notice party may elect to fully participate in the litigation primarily to ensure that all of the points which he or she considers to be relevant or appropriate are made in support of the impugned decision.
21. It seems to me that a notice party to a statutory appeal has a choice whether to instruct lawyers, and a separate choice whether to attend and participate in the hearing. A notice party could also instruct his lawyers to engage with the respondent to the appeal and this proposition seems to me to follow from the statement at para. 5.5 of the decision of Clarke J. in Usk and District Residence Association Ltd v. Environmental Protection Agency, that the issue is one of the reasonableness of the engagement.
22. In some cases the interest of the notice party lie wholly in supporting the decision of the statutory decision maker, and in arguing that the impugned decision is correct, unless of course the decision maker opts not to seek to uphold the impugned decision.
23. In the present case it would be true to say that the notice party did put forward arguments not made, or perhaps made with a different emphasis, by counsel for the PRTB. However the interest of the receiver and that of the PRTB were identical, namely an interest in upholding the decision that the tenancy was lawfully determined and that substantial arrears of rent were owed and were directed to be paid.
24. Counsel for the receiver points to the fact that she did deal extensively in her submissions with the question of the identity of the landlord and also with the argument that there might have been a sub-tenancy created by one of the directors of the company in favour of Mr. Doyle, an argument that was at one stage sought to be made by counsel for Mr. Doyle who at all times asserted that his landlord was a natural person and not a company.
25. Having regard to the fact that in my decision I found that the question of the identity of the landlord was not properly before me, and that I had no jurisdiction to deal with that factual question, and that the Tribunal had dealt correctly and within its jurisdiction in coming to the determination that the receiver was validly appointed, and that the landlord was a corporate entity, I consider that the submissions of the notice party with regard to those points were ones capable of being made by the PRTB, and were extensively dealt with in the affidavit evidence of Kathryn Ward, assistant director of the PRTB, at para. 16 of her affidavit sworn on the 28th January, 2015 and by John Tiernan, the chairperson of the hearing before the Tenancy Tribunal, in his affidavits sworn on 12th June, 2015 at paras. 16, 17, 18, 19, 20, 21 and 22 thereof.
26. In those circumstances I consider that the notice party could adequately have dealt with this appeal by direct engagement with the solicitors for the PRTB, and a pre-hearing engagement could have had the effect of assisting in the preparation of, or adding to, the legal submissions. One set of legal submissions would have been sufficient, and the affidavit evidence furnished by the receiver was in truth before the High Court in the exhibits and affidavit evidence proffered by the PRTB.
27. Had the receiver sought to engage with the PRTB, and had this proposal of engagement been refused, I might have come to a different conclusion, but I do not consider that the notice party needed to engage fully with the hearing and to be fully represented or to submit lengthy legal submissions and affidavit evidence. I pause briefly to note that counsel who appeared for the receiver made her submissions with considerable skill, but the question before me is whether the costs of the receiver in participating ought to be paid.
28. I can, it seems to me, distinguish the judgment of Clarke J. in Usk and District Residence Association Ltd v. Environmental Protection Agency because the reason why costs were granted to Greenstar, the notice party in that case, was that Greenstar had a particular and unique interest in the details of the result of the case which concerned the manner in which a waste facility was to be operated, and Greenstar’s engagement was of a unique degree having regard to the importance of those details.
29. I conclude that the receiver was not a necessary party in these proceedings as a litigant, and that the interests which the receiver sought to protect coincided with those of the PRTB, and, insofar as a different emphasis was sought to be applied to certain arguments or facts, the approach of the PRTB might have been usefully informed by pre-litigation engagement between the receiver and PRTB.
30. Even if I am incorrect in my conclusion that the receiver was a necessary party as a litigant in these proceedings, I consider that as the statutory appeal is not an inter partes process, and had my conclusion been that the PRTB was incorrect in its determination whether in whole or in part, the matter of the termination of the tenancy would have been returned to the PRTB for further argument and assessment on an interparty basis.
31. Furthermore I consider that to add a second layer of costs to an unsuccessful landlord or tenant in a statutory appeal might fail to achieve the purpose of the legislation and the desire of the Oireachtas to achieve a cost effective and speedy resolution of disputes in the residential sector.
Some costs?
32. Notwithstanding my general view with regard to the role of the receiver in this case, a unique element in this litigation was the unnecessary additional costs incurred by the receiver in engaging with the proceedings in the Masters Court and in dealing with the procedural difficulties that arose as a result of the adoption of an incorrect procedure. The procedural errors made by the applicant in the prosecution of the claim added considerably to the costs and expenses incurred by the receiver in having to engage with the appeal.
33. I consider that it is appropriate in those circumstances that the receiver be entitled to the costs of the appearances and attendances before the Master and the costs of the hearing before Binchy J. and I will hear counsel as to the precise form of the order I am to make in those circumstances.
