High Court grants leave for judicial review on unequal access, enhanced evidence, and ultra vires findings.

THE HIGH COURT

[2026] IEHC 273

[Record No. 2025/352 JR]

BETWEEN

USAMA AKRAM

APPLICANT

AND

RESIDENTIAL TENANCIES BOARD

RESPONDENT

EX TEMPORE JUDGMENT of Mr. Justice O’Higgins delivered on the 26th day of March 2026

1. This is my ex tempore judgment in a contested leave application. The applicant seeks leave to issue judicial review proceedings to quash the respondent’s decision dated the 7th February 2025, and issued to the applicant on the 26th February 2025, refusing the applicant’s appeal from a decision of an adjudication held pursuant to s. 97 of the Residential Tenancies Act 2004, as amended. The appeal in question was heard by the tenancy tribunal over three separate hearing days, being the 31st May, 25th September and 14th November 2024. In the determination order of the tenancy tribunal, which, under the statutory scheme provided for in the Residential Tenancies Act 2004, ultimately becomes the order of the respondent Board, the following determinations were made by the respondent: (1) the notice of termination with a date of service of the 29th June 2023, served by the first respondent landlord on the appellant tenants in respect of the tenancy of the dwelling at a particular flat on Shelbourne Road in Ballsbridge, Dublin 4, is valid; (2) the appellant tenant’s claim of unlawful termination of the tenancy is not upheld; (3) the appellant tenant’s claim for breach of the landlord’s obligations in relation to standards and maintenance of the dwelling is not upheld; (4) the appellant tenant’s claim for breach of the landlord’s obligations with respect to peaceful and exclusive occupation of the dwelling is not upheld; and (5) the appellant tenant’s claim of penalisation is not upheld. That determination order is signed by a higher executive officer on behalf of the director of the Board.

2. The applicant issued the proceedings on the 13th March 2025. By order of Ms. Justice Bolger dated the 23rd June 2025, it was ordered that the leave application should proceed on notice to the respondent and directions for service were given and complied with. The matter also appeared in the directions list before Ms. Justice Gearty, and on the 22nd July 2025, Gearty

J. gave directions that the notice parties, who are the landlords, be joined to the proceedings and she also extended time for the respondent to deliver its affidavit. The respondent has delivered an affidavit but has not filed a statement of opposition. As was explained during the hearing before me, that is not required under O. 84 RSC because we are currently at the stage where leave has not been granted and, therefore, the time limit for delivering any statement of opposition has not commenced.

3. The parties can take it that I have read the papers in this matter and have had a further opportunity since the hearing last week to review the core documents and the extensive submissions that have been made. These core documents include the amended statement of grounds reflecting the joinder of the landlords as notice parties; the grounding affidavit of the applicant dated 13th March 2025; Mr. Akram’s supplemental affidavit of the 10th October 2025, which runs to some 39 pages of small type; the replying affidavit of Mr. McGoldrick of the respondent Board, and written submissions of the parties, including supplemental witness submissions from the applicant.

4. In addition, on the morning of the hearing I was provided with a written speaking note by the applicant which I have had a chance to re-read and which I have found helpful. Counsel for the respondent, Mr. Harmon BL, did not object to the speaking note being handed in, which was also sensible. Mr. Akram brought the court through the exhibits and documents which he felt warranted specific mention, including relevant excerpts of the transcripts from the three days of hearing before the tenancy tribunal.

5. A foundational document in any judicial review application is of course a statement of grounds. The statement of grounds here is lengthy, running to some 12 finely typed pages. Unfortunately, it contains a lot of prolix material. The decision of the tenancy tribunal under challenge is also detailed, running to some 28 pages. I will not read out the entirety of the document for reasons of brevity, but I will read out the last page and a half, approximately, of the decision under challenge because it supplies a degree of context for this ruling and it is also an aspect of the decision that is the subject of criticism by the applicant.

I will commence halfway down page 27 of 28 of the decision, under the heading ‘General’. This is the decision under challenge, which is signed by Ms. Quirke, Chairperson for/on behalf of the tribunal. And the portion reads as follows: “The Tribunal finds as a general observation that the tenants’ credibility is called into question on numerous occasions. The statement that the Landlords made ‘numerous attempts at illegal evictions’ and that they were ‘afraid for their lives’ are examples of the many overstated claims made by the Tenants.

They expressed themselves to be terrified at the ‘prospect of becoming homeless or of suffering serious injury at the hands of our landlord’. The Tribunal considers that their claims of ‘negligent and malicious behaviours’, ‘dangerous landlords’ etc amounted to an exaggeration of the facts and their behaviour caused the Landlords a great deal of stress and inconvenience. The Tribunal finds that a significant amount of the ‘evidence’ submitted by the Tenants does not actually constitute evidence but their subjective position on the situation.

Long accounts were delivered comprising their opinions – ‘the Adjudicator incorrectly validated the Notice of Termination’ and ‘landlord’s forwarding of false and misleading information to RTB on material aspects and attempted contravention of the appeal process’ and of hearsay particularly in relation to the many tradespeople who were called to the dwelling. The Tenants suggested that the Landlords might face a prison sentence when found to be guilty of the many ‘violations’ claimed by them. They referred to themselves as victims until corrected by the Tribunal and spoke of expecting the Landlords to ‘repay their debt to society’.

The repeated use in correspondence of the expression ‘threat of escalation to the RTB’ would suggest a form of coercion by the Tenants rather than penalisation by the landlords. This coupled with the escalating assessment of how they should be compensated (from €500 per month, to €5,000 or two months’ rent free (page 48 of Tribunal Case File 1) to €40,000) and demands for ‘sincere and remorseful recorded apologies’ led the Tribunal to consider that the case amounted to an opportunistic strike. The claim that they ‘had been abused’ together with the many other overstated claims tempers the Tribunal’s view of their allegations.

The First-Named Landlord stated in her summing up, that when she apologised for not registering the tenancy in a timely manner as she was then undergoing two rounds of surgery and chemotherapy, her statement was met with a remarkable lack of empathy or compassion. The Tenants claim a ‘great miscarriage of justice’ but the tribunal finds that it is the Landlords who have suffered the most. Notwithstanding the above the Tribunal has, in compliance with their obligations under the Act, considered all claims made by the parties against the legislative framework of rights and obligations of each party as set out in the Act.

The Tribunal has no jurisdiction to deal with criminal matters claimed by the Appellant Tenants such as mail tampering, harassment at work or other claims of alleged criminal acts.” And then under the hearing ‘Determination’, the decision outlines the five formal determinations that I have already addressed earlier in this ruling.

6. Turning then to the law, the legal principles that I have to apply in this application are not the subject of serious dispute between the parties. The parties referenced the leading case of G. v. DPP [1994] 1 IR 374, where Finlay C.J. set out the test to be applied when considering whether leave should be granted, as follows: “An applicant must satisfy the court in a prima facie manner by the facts set out in his affidavit and submissions made in support of his application of the following matters:-

(a) That he has a sufficient interest in the matter to which the application relates to comply with rule 20(4).

(b) That the facts averred in the affidavit would be sufficient, if proved, to support a statable ground for the form of relief sought by way of judicial review.

(c) That on those facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks.

(d) That the application has been made promptly…” (I am not reading it all out because it is not engaged in the facts here) “(e) That the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be an order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, on all the facts of the case, a more appropriate method of procedure.”

7. More recently, the Supreme Court considered the test in O’Doherty and Waters v. The Minister for Health [2023] 2 IR 488. In that case, the applicants sought leave to apply for judicial review challenging the constitutionality of the Health Act 2020; the Emergency Measures Act 2020; the Health Act 1947 (Affected Areas) Order 2020; and the 2020 COVID Regulations and the first instrument extending those regulations. The Supreme Court held, in dismissing the appeal from the decision of Mr. Justice Meehan and subsequently the Court of Appeal refusing leave, as follows: “…the threshold of arguability in G. v. DPP is a relatively low bar, but… it is not a non-existent threshold. It is worth recalling in this context the observation of Charleton

J. in the course of his judgment in Esmé v. Minister for Justice and Law Reform [2015] IESC 26 (Unreported, Supreme Court, Clarke, Laffoy and Charleton JJ., 19th March, 2015):- “…The point of law is only arguable… if it could, by the standards of rational preliminary analysis, ultimately have a prospect of success.”” The second finding by the Supreme Court, that is summarised in the headnote, provides that: “…a court may direct that an application for leave to seek judicial review be heard on notice to the respondent.” - which is the case here - “…However… this procedure does not alter the threshold test, and which remains that set out in G. v. DPP. (See the observations of Denham J. in D.C. v. DPP [2005] IESC 77, [2005] 4 I.R. 281)… But… that decision must now be made in light of the evidence submitted by a respondent, and the arguments adduced.” Quite correctly, Mr. Harmon, in the present case, accepts that the fact that the matter was on notice to the respondent did not affect the legal threshold to apply for considering whether to grant leave.

8. In the present case, the respondent makes no issue about delay or promptness, or about standing/locus standi. Mr. Harmon also accepts that the threshold the applicant must reach, as I have said, is not a high one and that the burden of proof on the applicant is light. However, the leave application is being contested on, if you like, three criteria within G v. DPP: Criteria (b), (c) and, to an extent, (e). Criterion (b) is the contention that the applicant has not identified a statable ground; (c) is the contention that, on the basis of the facts pleaded, the applicant does not here have an arguable case in law for the relief he seeks; and (e) is the contention that the applicant has not established that the only effective remedy is an order by way of judicial review or that, if there be an alternative remedy, the applicant does not have a more appropriate method of proceeding.

9. Turning to the statement of grounds, the grounds advanced are, in the normal way, set out at para. (e) of the document. Two grounds are advanced and these are then further particularised in a considerable level of detail. The two grounds are as follows: “1. Unequal access to proceedings: The 31 May 2024 hearing was conducted on a hybrid basis, with the respondent landlords attending remotely. The applicant tenants weren’t informed of this in advance, and one of the two was unable to attend in person that day. The other only learned of the hybrid arrangements upon arriving before the Tribunal, and the RTB only sent tenants the link to the virtual hearing more than 45 minutes after commencement. The other tenant may have been able to attend remotely with advance notice. Since applicant tenants were not given the same opportunity to attend as the respondent landlords, this contravenes the principles of fair procedures and natural justice. Tenants haven’t been given the same opportunity to advocate their case, which doesn’t comply with RTA §104(6).

2. Bias: Throughout the Tribunal’s report, and especially in §General, the Tribunal display a clear bias against the tenants. In §Finding 7.2 page 22 and §General pages 27-28, the Tribunal says they are of the opinion that tenants engaged in “coercion” and determine against tenants in all matters of dispute because of this opinion. At the end of page 27, the Tribunal state their belief that tenants have “overstated” claims in an “opportunistic strike” to gain compensation “tempers the Tribunals view of their allegations”. I believe this bias should disqualify the decision given its potential to bring the procedures for determinations by Tribunal under Part 6 of the RTA into disrepute. The effects of this bias on the Tribunal’s determination of the dispute can be seen in five areas.” And then in the balance of the statement of grounds there are, set out and developed, five headings which are said on page one to be the effects of this claimed bias on the tribunal’s part. Those headings are: (1) Determination of matters outside jurisdiction; (2) Omissions from the tribunal’s report; (3) Procedural inconsistencies; (4) Enhancing landlords’ evidence; and (5) Material inaccuracies in findings of fact.

10. I am going to deal firstly with the claim of bias. In my view, no sustainable or coherent claim of bias is pleaded in the statement of grounds, nor has any evidence of bias been identified. Bias concerns an allegation of lack of impartiality by a decision maker. Subjective bias is said to exist where the decision maker is, in fact, biased against one of the parties, whereas objective bias refers to a situation in which there is a ‘perception’ of bias. Though I accept that certain limited parts of the statement of grounds allege and use words such as ‘bias’, ‘inconsistent rulings’, ‘enhancing the landlords’ evidence’, ‘exaggerating the reliability of the landlords’ evidence’, and so on, it seems to me that the claim of bias is wholly misconceived and is such that it enjoys no prospect of success. It seems to me that, in the context in which the bias argument is expressly stated within the statement of grounds, the word ‘bias’ is being used in error, and, it would appear, is being used instead of the expression ‘unfair procedures’.

11. In my view, any litigant, whether represented or not, should exercise restraint before accusing a decision maker of any form of bias. Bias allegations, particularly allegations of subjective bias, should not be made lightly as they go to the heart of a person’s character and amount to a suggestion that the decision maker is not impartial, has an improper connection with one side or the other, or is improperly motivated and not capable of holding the scales evenly between the parties. Allegations of bias should not be made without evidence to substantiate them. It is simply not acceptable for any party who may be unhappy with the

decision to infer from the outcome of the case that the decision maker was biased. An adverse ruling by a decision maker, even one stated in trenchant terms that may seem personally harsh, cannot be a basis in and of itself for alleging bias. I am not satisfied, in the present case, that the allegations of bias as pleaded are statable or that they could ultimately have a prospect of success.

12. Secondly, I should record that, during the hearing, I pointed out to the applicant, Mr. Akram, that I had concerns about the bias plea and I asked him did he, in reality, mean to advance a case of unfair procedures. Mr. Akram acknowledged that he was not overly familiar with certain legal definitions, and he indicated that his main concern was to advance a case that the hearings before the tribunal were not fair and that different standards were applied by the tribunal towards respective parties, i.e. landlords versus tenants.

13. Out of fairness, therefore, and mindful that the applicant is a litigant in person and having regard to the temperate and reasonable manner in which the case was advanced at hearing, I will assume that the points pleaded under the ‘bias’ headings are intended to include allegations as to breaches of fair procedures. I will also, again in ease of the applicant’s position, treat the allegations as to findings being made outside of jurisdiction as being standalone pleas for seeking certiorari, rather than as particularisation of an overarching claim of bias, which is how the statement of grounds is currently drafted.

14. Even doing that, however, with respect to the majority of the grounds advanced, I am not satisfied that the low threshold for granting leave has been met in this case. Pleas of bias or breaches of fair procedures should be capable of being stated and developed in four or five crisp lines. Obviously, that is a general proposition to which there will be exceptions. The pith of the allegation should be evident from the text of the transcript excerpt that is being relied upon, or from a crisp description of the unfairness alleged. Here, the statement of grounds goes into micro detail about adverse rulings and criticisms of the tenant’s position in the tribunal’s report.

15. The core case pleaded involves criticisms, it seems to me, of the merits of the tribunal’s

decision making, not of procedural unfairness. Examples within the statement of grounds include:

• on page 4, the complaint that the report fails to accurately describe events;

• on page 5, the complaint that the tribunal, in parts of the decision, omitted context;

• on page 6, the complaint that the tribunal erred in their evaluation of evidence regarding who was responsible for leaving the door of the tenant’s dwelling open;

• on page 7, the complaint that the tribunal erred in excusing some of the landlord’s invalid termination notices as merely mistaken understandings or as arising in a vacuum of naivety;

• on page 7, the suggested mis-summary of some of the landlord’s claims;

• on page 8, the complaint of neglecting to consider the stresses and inconvenience certain events would have caused for the tenants, and not just for the landlords;

• on page 11, suggested misstatements or misappraisals of the tenant’s evidence in the report; and

• on page 11, a criticism of the tenants for referring to themselves as victims, before being corrected by the tribunal. In my view, these criticisms do not amount to statable grounds of unfair procedures and concern, in different ways, the applicant’s dissatisfaction with rulings on the merits made against them.

16. Having reviewed the statement of grounds in its totality, and particularly having regard to the portion of the transcript emphasised by the applicant, I am not satisfied, save in three separate respects, that the applicant has put forward sufficient grounds that would sustainably support an arguable case.

17. The fair procedure grounds that I have found to be statable relate to ground (iv) on page

6 of the statement of grounds, under the heading “Enhancing landlords’ evidence”, as further particularised on page 6 at paras. (a), (b), (c), (d), (e) and (f). I am not, for the avoidance of doubt, giving leave to argue grounds (g) or (h) on page 8 of the statement of grounds.

18. Turning to the first ground pleaded on page 1 of the statement of grounds, and once again, being mindful that the leave burden is not a heavy one and merely requires the applicant to advance a statable ground, I will err on the side of caution and give leave to argue ground

(1) on page 1, being the “Unequal access to proceedings” ground. The respondent, I should point out, has put forward facts in Mr. McGoldrick’s replying affidavit at paras. 14 to 18, which, if I could use this language, calls into question the materiality of the suggested error concerning the remote link. But I am going to take the view in this case that the materiality issue is more appropriate to be dealt with at the substantive inter partes stage. Accordingly, I propose to grant leave to the applicant to advance ground (1) on the statement of grounds.

19. That leaves one other ground in respect of which I have decided to grant leave, and it is a vires or jurisdictional ground concerning, what the applicant urges, are strident findings of a personal nature made against the tenants insofar as the tribunal made findings of coercion by the tenants against the landlords. This occurred at the end of the tribunal’s discussion of issue 7.2, in the tribunal’s rejection of the tenant’s claim of penalisation, and also in the final two pages of the decision under the heading ‘General’ that I have already read out.

20. Accordingly, the court’s order will reflect that leave is granted on the following three grounds only:

(1) Ground (iv) on page 6 of the statement of grounds, carrying the heading “Enhancing Landlords’ Evidence” as further particularised on page 6 of the statement of grounds at sub-paras. (a), (b), (c), (d), (e) and (f). Leave has not been granted for paras. (g) or (h);

(2) Ground 1 on page 1, headed “Unequal access to proceedings”; And, if you like, this is a revised ground, that is to say, it is a reworking of the statement of grounds to pare it back. And it is:

(3) Leave to challenge finding 7.2 on page 22 of the impugned decision and the findings recorded under the heading “General” on pages 27 and 28 of the impugned decision on the ground that such findings were ultra vires the tribunal’s powers under the Residential Tenancies Act 2004, as amended. And that concludes my decision on the leave application.

Signed: Micheál O’Higgins

Appearances:

The applicant appeared as a litigant in person

For the respondent: Declan Harmon BL instructed by Byrne Wallace Shields LLP