Supreme Court dismisses appeal as claim for damages is moot due to valid eviction warrant.

THE SUPREME COURT

[Appeal No. 2009/04326]

Clarke C.J.

McKechnie J.

MacMenamin J.

Dunne J.

O'Malley J.

BETWEEN

CHRISTINE QUINN

APPLICANT/APPELLANT

AND

ATHLONE TOWN COUNCIL, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

Judgment of Ms. Justice Dunne delivered the 20th day of December 2017

This is an appeal from the judgment and order of the High Court (Hedigan J.) refusing the applicant/appellant's (hereinafter referred to

as "Ms. Quinn") application for judicial review on the grounds of delay and acquiescence.

Background

Ms. Quinn was a local authority tenant of the first named respondent in Athlone, where she resided with her two children. She was

served with a summons pursuant to s. 62 of the Housing Act 1966 on foot of a notice to quit and demand for possession dated the

25th September, 2008. The basis of seeking the eviction of Ms. Quinn was a series of allegations of anti-social behaviour made

against her. A number of affidavits were exchanged between Ms. Quinn and the first named respondent on the issue as to whether

there had been anti-social behaviour by Ms. Quinn but it is not necessary to enumerate those allegations made against her or, indeed,

her response to those allegations. Suffice it to say that that was the basis upon which the order pursuant to s. 62 of the Housing Act

was sought against her.

Proceedings on foot of the ejectment summons commenced before Athlone District Court on the 6th February, 2009, and I will refer

later in the course of this judgment in more detail to the history of the matter before the District Court. Subsequently, an application

was made ex parte to the High Court on the 27th July, 2009 (Peart J.) seeking leave to apply for judicial review in relation to a series

of reliefs namely:

(1) A declaration pursuant to s. 5 of the European Convention on Human Rights Act 2003 that s. 62 of the Housing Act

1966 is incompatible with the provisions of the European Convention on Human Rights ("the European Convention") and in

particular Articles 6; 8; and 14 thereof.

(2) A declaration pursuant to s. 5 of the European Convention on Human Rights Act 2003 that s. 62 of the Housing Act

1966 is incompatible with the provisions of Article 13 of the European Convention.

(3) In the alternative, a declaration that the first named respondent has failed to perform its functions in a manner

compatible with the obligations of the State under the said Articles of the European Convention in breach of its statutory

obligations under the European Convention on Human Rights Act 2003 and in particular its duty under s. 3 thereof.

(4) Further or in the alternative, a declaration that s. 62 of the Housing Act is invalid having regard to the provisions of

the Constitution and in particular the personal rights of the applicant under Article 40.1, Article 40.3 and/or Article 43

thereof.

(5) If necessary, an order of certiorari setting aside the summons issued against the applicant pursuant to s. 62 of the

Housing Act 1966.

(6) An order of prohibition restraining the first named respondent from “seeking to enforce or other (sic) pursue” the

summons issued against the applicant pursuant to s. 62 of the Housing Act 1966.

Other ancillary relief was also sought together with a claim for damages.

Ultimately, the application for leave to apply for judicial review came before the High Court and in a judgment of the 8th July, 2010,

the application was refused following consideration of preliminary objections raised on behalf of the second and third named

respondents and by the first named respondent.

The judgment of the High Court

The judgment of the High Court dealt with three preliminary points that were raised by the second and third named respondents and

the first named respondent respectively. Counsel on behalf of the second and third named respondents made the argument that the

proceedings were fundamentally misconceived on the basis that the applicant was challenging the procedure under the Housing Act

1966 in the District Court and the summons issued by that Court rather than challenging the notice to quit upon which those

proceedings had been based. Counsel on behalf of the first named respondent raised two separate issues, namely delay in

commencing the proceedings, and it was further argued that the applicant had acquiesced in the process in circumstances where she

had participated in the proceedings in the District Court and accordingly it was argued that the discretionary remedy of judicial review

ought not to be made available to her.

On each of the three points raised against the applicant, the learned trial judge found against Ms. Quinn. Insofar as the question of

the failure of Ms. Quinn to challenge the notice to quit, the learned trial judge referred to the decision of the High Court in the case of

Dublin City Council v. Fennell [2005] 1 I.R. 604, in which Kearns J. at pages 638 to 639 stated:

"The parties’ legal rights and obligations were, in my view, fixed and determined once the wheel was set in motion by the

service of a notice to quit, an act which triggered the provisions, requirements and consequences of s. 62 of the Housing

Act 1966. That is the moment when the invocation of legal rights determined the applicable law and the position of the

parties.”

Thus, the learned trial judge held that the relevant date from which time should run was the date of service of the notice to quit

when the Article 8 rights of Ms. Quinn were engaged. This conclusion had a bearing on the issue of delay. In circumstances where the

proceedings seeking relief by way of judicial review were not commenced for some nine months after that date, he found that she

was not entitled by reason of delay to pursue relief by way of judicial review. Accordingly, he found that she was out of time to do

so. Insofar as the possibility of extending the time within which to make the application, he found that: "no convincing reasons have

been advanced by [Ms. Quinn] in support of this application". Thus, the learned trial judge disposed of the issue as to whether or not

Ms. Quinn should have challenged the notice to quit rather than the procedure in the District Court and the issue of delay.

The third issue was the issue of acquiescence. It was contended on behalf of the first named respondent that Ms. Quinn had

acquiesced by participating in the District Court proceedings and that as such judicial review should be refused. It was pointed out

that Ms. Quinn had given evidence in the District Court and that she could have opted to bring judicial review proceedings and sought

a stay on the proceedings in the District Court but chose not to do so. Rather, she applied on a number of occasions to have the

matter adjourned. Reference was made to the decision in the case of MQ v. Judges of the Northern Circuit [2003] I.E.H.C. 88

(McKechnie J.) in which the learned judge declined to exercise his discretion to grant judicial review by reason of the applicant's

acquiescence in that case. It was submitted on behalf of Ms. Quinn that she had not waived any rights she may have had by virtue

of her participation in the District Court process as she had not acted in an unequivocal manner as was required to demonstrate

acquiescence. Further, it was contended that the District Court had never made a binding determination, and that acquiescence

could only arise where such a determination had been made. The learned trial judge concluded that it would not be appropriate to

grant the reliefs sought in circumstances where it was clear on the evidence that Ms. Quinn had fully participated in the District Court

proceedings.

The District Court proceedings

Before proceeding further it would be helpful to set out the history of the proceedings before the District Court on foot of the

summons pursuant to s. 62 of the Housing Act 1966. An account of the proceedings in the District Court is set out in the affidavit of

Owen Carty, solicitor, the solicitor acting on behalf of Ms. Quinn in the proceedings. In his affidavit, he outlined the fact that the

matter first appeared before the District Court on the 6th February, 2009 and was on that date adjourned by consent to the 18th

March, 2009. On the 18th March, 2009, submissions were made to the judge sitting to have the matter adjourned pending the

determination of the Supreme Court appeal in the case of Dublin City Council v. Gallagher [2008] I.E.H.C. 354. The solicitor for the

local authority applied to have the matter adjourned and the matter was listed for mention on the 1st April, 2009 and then listed for

hearing on the 24th April, 2009. On that date, legal submissions were provided to the Court and again an application was made to

have the matter adjourned pending the determination of the Supreme Court in the Gallagher case. Following the hearing of

submissions, the District judge sitting on that occasion adjourned the matter to the 13th May, 2009. On the 13th May, 2009 the

matter came before District Judge Neilan and the matter was adjourned to the 3rd July, 2009 for the purpose of submissions in

respect of adjourning the case pending the decision in the Gallagher case. On the 3rd July, 2009, submissions were heard from both

parties in respect of s. 62 of the Housing Act 1966, having regard to its applicability and enforceability in the light of declarations of

incompatibility with the European Convention on Human Rights. Following the hearing of submissions from counsel on both sides, the

learned District judge refused to issue a warrant pursuant to s. 62 of the Housing Act 1966. He indicated that the local authority had

a number of alternative remedies by which it could seek to have the issue of the alleged anti-social behaviour determined. He

accepted that the local authority's proofs were in order despite the formal proofs not being proved by any witness from the local

authority. In the course of the hearing on that date, Ms. Quinn gave an undertaking not to engage in any anti-social behaviour.

Daniel O'Neill, the deponent of the affidavit sworn herein on behalf of the first named respondent, gave evidence on behalf of the local

authority in relation to the alleged anti-social behaviour on the part of Ms. Quinn. The learned District judge decided to adjourn the

matter for mention until the 15th July, 2009 so as to enable him "to keep his finger on the pulse" in relation to the alleged anti-social

behaviour. Mr. Carty was notified in advance of the hearing on the 15th July, 2009 (which was for mention only) that the local

authority were going to seek the opinion of the High Court on a number of questions of law and a draft consultative case stated was

provided to him. Having heard argument on that issue on the 15th July, 2009, the application for a consultative case stated was

declined by the learned District judge. Further evidence was given on that date by Mr. O'Neill as to other allegations of anti-social

behaviour on the part of Ms. Quinn. Despite the fact that the matter had been listed for mention only on the 15th July, 2009, an

application was made on that date for the issuance of a warrant. Ultimately, the learned District judge decided to adjourn the matter

to the 5th September, 2009 for hearing. In his affidavit, Mr. O'Neill observed that when the matter was adjourned, the learned District

judge did not give any reason for the same or indication as to when he might determine the matter. In those circumstances, it

appears that correspondence took place between Mr. Carty and the legal representatives of the local authority as to whether or not

the local authority intended to apply for leave for judicial review given the District Judge's decision to adjourn the matter for further

hearing. Confirmation was received on the 23rd July, 2009 that the local authority was going to apply for judicial review on the 27th

July, 2009. The purpose behind such application was to obtain an order of mandamus requiring the District Court judge to issue a

warrant for possession.

As I have already said, Ms. Quinn made her application for leave to apply for judicial review on Monday, 27th July, 2009, ultimately

leading to the decision of the High Court refusing her application for judicial review on the grounds previously set out. On the same

date, the local authority also brought an application for leave to apply for judicial review in the form of an order of mandamus

directing the learned District judge to hear and determine the application of the local authority for a warrant for possession. I will

return to the significance of that application and the order subsequently made in those proceedings shortly.

The appeal before this Court

When the matter came before this Court by way of appeal, Ms. Quinn was met with an argument that the appeal was moot given that

she had by then been evicted from the property in which she had been a tenant of the first named respondent. She conceded that

certain of the reliefs she had sought were no longer available in those circumstances, but maintained that she had at all times made a

claim for damages arising from the contention that there had been a breach of her rights under the European Convention on Human

Rights by the first named respondent. Such claim, it was argued, meant that her appeal was not moot. Counsel on behalf of Ms. Quinn

made it clear that she was no longer seeking any relief from the second and third named respondents as she was now seeking

damages from the first named respondent only.

During the course of the hearing, inquiries were made by the Court as to the circumstances in which Ms. Quinn came to be evicted.

The original order of the 27th July, 2009 granting leave to apply for judicial review obtained by Ms. Quinn provided for a stay on

execution of the s. 62 summons issued against her, pending the determination of the judicial review proceedings. The stay came to an

end following the judgment and order of the High Court made herein on the 16th July, 2010. It became apparent during the hearing of

this appeal that the judicial review proceedings commenced by the first named respondent against the learned District judge had a

bearing on the subsequent eviction of Ms. Quinn. For that reason, the Court arranged to obtain the papers in those proceedings and

they were made available to the Court as was the warrant of execution ultimately relied on by the first named respondent to evict

Ms. Quinn. It would appear from the warrant of execution that this was in fact executed on the 22nd September, 2010 but the date

of execution is not of particular importance.

An examination of the papers in the judicial review proceedings against the District judge helps to explain how this came to pass. The

first named respondent in its proceedings against the District judge sought the following relief:

"(i) An order of mandamus directing the Respondent to hear and determine an application which was before him on the

3rd of July 2009, in which the Applicant sought a warrant for possession in respect of premises at 27 Brawney Square,

Athlone, in the County of Westmeath, lately held under tenancy by the Notice Party;

(ii) A declaration that in declining to determine the matter on the purported basis that the Notice Party had given an

undertaking and/or the Applicant had an alternative remedy in the criminal courts, the Respondent:

(a) Exceeded his jurisdiction

(b) Acted ultra vires the provisions of Section 62 of the Housing Act 1966 (as amended)

(c) Acted in breach of fair procedures.

(iii) A declaration that in failing to determine the matter before him, the Respondent took into account unlawful and/or

irrelevant considerations, namely:

(a) That the Notice Party had given an undertaking not to engage in anti-social behaviour and/or

(b) The alleged inactivity on the part of An Garda Síochána in respect of alleged anti-social behaviour of the notice

party and/or members of her family.

(iv) Costs."

Ms. Quinn as one would expect was a notice party to those proceedings.

An order was made in those proceedings on the 27th November, 2009 by the High Court (O'Neill J.) granting the relief sought by the

first named respondent herein. In making that order, the Court noted that the application was not being opposed. In that context,

this Court has been furnished with a letter from Ms. Quinn's solicitors dated the 20th November, 2009 and addressed to the solicitors

for the first named respondent confirming that Ms. Quinn "will not be participating in the judicial review proceedings taken by the local

authority as against Judge Neilan . . ." Thus, as can be seen, Ms. Quinn unequivocally made it clear that she would not and

subsequently did not oppose the making of the order requiring the District judge to determine the application for the issue of a

warrant for possession.

While the arguments before this Court concerned the question of mootness and whether the learned High Court judge was correct in

the approach taken on the issue of delay and acquiescence, it seems to me that a serious question has now arisen as to what, if

any, relief could be obtained at this stage by Ms. Quinn? Indeed, the question must also be considered as to what relief could have

been granted by the High Court to Ms. Quinn, even if the issues of delay and acquiescence had not been decided against her, in

circumstances where she had not opposed the making of the order of mandamus against the learned District judge, thus ensuring

that the District Court had no option but to issue the warrant of execution.

How can Ms. Quinn be entitled to damages for an alleged breach of her European Convention rights in circumstances where she did

not oppose the making of that order in the related judicial review proceedings? What possible breach of her rights could have

occurred in circumstances where she was ultimately evicted on foot of a valid court order made following an unopposed application

for mandamus? Quite simply, it seems to me that there could be no breach of Ms. Quinn's right under the European Convention where

she was evicted on foot of a valid warrant of execution. Thus, it seems to me that the question of damages for an alleged breach of

her rights under the European Convention simply cannot arise.

One might observe at this stage, looking back at these events with the benefit of hindsight, that there was a degree of futility in

pursuing Ms. Quinn's proceedings against the respondents once the order of mandamus had been made in the related judicial review

proceedings. One might further observe that it is unfortunate, having regard to the fact that both the first named respondent and Ms.

Quinn made applications and were granted leave to apply for judicial review on the same day, that the two sets of closely connected

proceedings did not travel together over the course of the respective proceedings. One can see the real difficulty that would have

arisen if Ms. Quinn was to have been successful in her judicial review proceedings, as any order made in those proceedings have been

inconsistent with the order made in the first named respondent's mandamus proceedings. It would have been preferable had the

proceedings been linked and dealt with at the same time. However, that did not happen.

The position now is that the only relief now being pursued by Ms. Quinn is her claim for damages, and, as I have said, I cannot see

any basis on which such a claim could now succeed given that the alleged breach of her rights under the European Convention

related to her eviction on foot of a valid warrant of execution from the premises in which she had been a tenant of the first named

respondent. That being so, the appeal is moot.

I should observe that, whilst interesting questions have been raised in these proceedings as to the question of delay and whether

time should be considered as running from the date of service of a notice to quit or from the date of service of a summons and as to

the question of acquiescence and whether one could ever be considered to have waived or acquiesced in the loss of one's rights

under the European Convention by participating in District Court proceeding, it is not necessary to decide these questions for the

purpose of reaching a conclusion on this appeal. Such interesting questions can be answered in circumstances where it is necessary

for them to be decided. I would reiterate the point that, even if Hedigan J. had decided not to dismiss the application for delay or

acquiescence, it is impossible to see what relief he could have given to Ms. Quinn in the light of the order made in the mandamus

proceedings.

In all the circumstances I would dismiss the appeal.