Supreme Court dismisses constitutional challenge to statutory tenancy succession rules for children under 18.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

S:AP:IE:2024:000109

O’Donnell C.J. Charleton J. Woulfe J. Hogan J. Donnelly J.

Between/

ZG AND EW (A MINOR SUING BY HIS

AUNT AND NEXT FRIEND ZG)

Applicants/Appellants

-and-

IRELAND AND THE ATTORNEY GENERAL

Respondents

-and-

CLÚID HOUSING ASSOCIATION

Notice Party

-and-

IRISH HUMAN RIGHTS & EQUALITY COMMISSION

Amicus Curiae

Ruling of the Court delivered on the 2nd day of April 2026.

1. In these proceedings the Applicants/Appellants challenged the validity of s. 39(1) of the Residential Tenancies Act 2004 (as amended) on the grounds that while the section created an entitlement to succeed to a statutory tenancy, it did not extend to children under the age of 18. It was contended that this was a breach of the Article 40.1 guarantee of equality and the Article 40.5 guarantee of the inviolability of the dwelling home. The claim was dismissed by the High Court with no order for costs, and this Court dismissed the appeal (O’Donnell C.J., Charleton and Woulfe JJ. concurring; Hogan and Donnelly JJ. dissenting).

2. The issue of costs is only live between the Applicants and the Respondents. The Notice Party Clúid and the amicus curiae IHREC do not seek any order for costs, and no order for costs is sought against them. Furthermore, neither the Applicants nor the State Respondents seek to disturb the order of the High Court. In addition, the State Respondents, although successful in the proceedings and this appeal, do not seek any order for costs, but rather contend that the appropriate order is no order for costs in this Court. The issue is narrowed further, because the Applicants do not contend that they are entitled to the full costs of the appeal, but do argue that they should receive two-thirds of the costs of the appeal.

3. The circumstances of the case were tragic. Proceedings were commenced with some haste, and with perhaps an understandable degree of confusion about the precise nature of the claim, the appropriate relief, and the parties against whom it should be sought. In the end however, the claim had resolved itself in this Court into a direct challenge to the validity of s. 39(1), albeit that the relief sought was merely a declaration that in failing to make provision for succession to a statutory tenancy by children under the age of 18, the provision failed to comply with the requirements of the Constitution.

4. There is no doubt that the issue raised here is one of general public importance

– that much follows from the grant of leave by this Court. On the other hand, it cannot be said to be one of those particularly rare cases (see: Little v Chief Appeals Officer [2024) IESC 53) where it is appropriate to order that the full costs of an unsuccessful Appellant should nevertheless be discharged by the successful party. This is acknowledged at least implicitly, by the Applicants’ contention that they are entitled to two-thirds of the costs.

5. As the extensive judgments delivered in this Court demonstrate, the appeal did raise important issues, particularly in relation to the true interpretation of significant provisions of Article 40 of the Constitution. Furthermore, given the limited terms of s. 39(1) and the particular circumstances of this case, it was perhaps understandable that proceedings would be issued to test the validity of the outcome in this case. In those circumstances, the Court considers that it is appropriate that the Applicants should recover some costs against the State Respondents and considers that the appropriate order is that the Applicants recover fifty percent of the costs of the appeal on the basis of one day's hearing, such costs not to include the costs of the case management hearings.