High Court dismisses appeal on tenancy registration appeal rights and orders no costs despite public interest arguments.

Neutral Citation: [2017] IEHC 236

THE HIGH COURT

[2016 No. 180 MCA]

BETWEEN

JACEK SNOCHOWSKI

APPELLANT

AND

AN BORD UM THIONÓNTACHTAÍ PRÍOBHÁIDEACHA CÓNAITHE (THE PRIVATE RESIDENTIAL TENANCIES BOARD)

FIRST RESPONDENT

AND

MCGINLEY CONSTRUCTION LIMITED

SECOND RESPONDENT

JUDGMENT of Mr. Justice Eagar delivered on the 7th day of April, 2017

1. In this case the Court decided that the second named respondent was entitled to appeal the adjudicated report because there

was no mention in s. 100 of the Residential Tenancy Acts 2004 to 2015 of a referral – it was purely an appeal. The court accepted

the submission of the first named respondent that the Board must act with due regard to fair procedures and that as well as the

appellant, the second named respondent was entitled to fair procedures and the court refused the leave sought in the notice of

motion.

2. Counsel on behalf of the first named respondent applied for her costs in the matter on the basis that the costs followed the event.

3. Counsel on behalf of the appellant sought the court to make an order requiring the second named respondent to comply with the

determination order including that it pay €2,496.95 to the appellant.

4. Section 124(1), (2) and (3) of the Acts states that:

“(1) If the Board or a party mentioned in a determination order is satisfied that another party has failed to comply with

one or more terms of that order, the Board or the first-mentioned party may make an application under this section to the

District Court for an order under subsection (2).

(2) On such an application and subject to section 125, the District Court shall make an order directing the party

concerned (the “respondent”) to comply with the term or terms concerned if it is satisfied that the respondent has failed

to comply with that term or those terms, unless

(a) it considers there are substantial reasons (related to one or more of the matters mentioned in subsection (3))

for not making an order under this subsection, or

(b) the respondent shows to the satisfaction of the court that one of the matters specified in subsection (3)

applies in relation to the determination order.

(3) The matters mentioned in subsection (2) are—

(a) a requirement of procedural fairness was not complied with in the relevant proceedings under this part,

(b) a material consideration was not taken account of in those proceedings or account was taken in those

proceedings of a consideration that was not material,

(c) a manifestly erroneous decision in relation to a legal issue was made in those proceedings,

(d) the determination made by the adjudicator or the Tribunal, as the case may be, on the evidence before the

adjudicator or Tribunal, was manifestly erroneous.”

5. The counsel for the appellant asked this Court to exercise its inherent jurisdiction to make an order under s. 124 of the Act which

would obviate the necessity for the appellant to make an additional application to the District Court which would reduce unnecessary

costs, time and expenses. He also asked the court for an order for the costs of the application under s. 124 of the Act to the District

Court and to certify for counsel’s fees. Ordinarily these costs are measured by reference to the Schedule of Costs to the District

Court rules. However, the said Schedule did not refer to such applications and the appellant asked this Court to measure those costs

and he referred to s. 124(7) of the Act:

“(7) The court may make such ancillary or other orders as it considers just on the hearing of an application under this

section.”

6. He also sought his costs or a contribution towards his costs from the first respondent or alternatively there should be:

(a) The appellant seeks his costs or a contribution towards his costs from the first respondent;

(b) Alternatively there should be no order as to costs;

(c) Alternatively if the first respondent is entitled to an order for costs of this appeal that order should be made against

the second respondent only and not against the appellant.

7. He cited O. 99, r. 1(1) of the Rules of the Superior Courts 1986 in which says inter alia the costs of and incidental to every

proceeding in the Superior Courts shall be in the discretion of those courts respectively. However, O. 99, r. 1(4) of the Rules states:

“Subject to the provisions of the Acts and any other statutes relating to costs and except as otherwise provided by

these rules … the costs of every issue of fact or law raised upon a claim or counterclaim shall, unless otherwise ordered,

follow the event.”

Counsel for the appellant submits that notwithstanding he did not succeed in obtaining the reliefs he sought, this Court has reason to

exercise its discretion pursuant to O. 99, r. 1(1) of the rules to make an order awarding the costs.

8. By bringing this appeal, counsel for the appellant submitted that the appellant raised a question of public importance affecting a

wide class of persons – landlords and tenants. In particular, the appellant raised questions about the extent of which the Oireachtas

sought to award the landlords who registered their tenancies and the extent of which it sought to punish landlords who did not

register their tenancies. He said the question was one of public interest and involved issues of considerable public importance

including:

(a) the obligation to register tenancies;

(b) the balance of that obligation against the audi alteram partem rule; and

(c) tenants of statutory interpretation.

9. He said the appellant had a personal financial interest in the outcome of these proceedings. Had he succeeded the determination

award would have been increased from €2,496.95 to €10,000.00. He said he was still entitled to an award from the second named

respondent in respect of the lower amount of €2,496.95 and that the likely amount of costs that an unlitigated appellant may have to

pay for the legal representation on both sides of the litigation of an appeal such as this is likely to exceed €7,305.00. He referred to

case law where the courts had considered exercising discretion in awarding costs to unsuccessful plaintiffs. He also quoted M.C. v.

Mental Health (Criminal Law) Review Board [2016] IEHC 341, a judgment of this Court where the court awarded 50% of the

applicant’s costs incidental to the proceedings on the basis that the proceedings had raised public law issues which were of great

importance.

10. Counsel for the first named respondent said that the costs followed the event and the event was a refusal by the court of the

reliefs sought in the notice of motion.

11. The Court first of all will not interfere with the jurisdiction of the District Court under s. 124 of the Residential Tenancy Act 2004

to 2015. The Court appreciates that costs are measured by reference to the Schedule of Costs in the District Court rules in the

District Court, but that is not a matter for this Court and the Court will decline to make any order under section 124.

12. In respect of costs the court does not believe that this is a matter which falls within the ambit of the court’s ruling in M.C. v.

Mental Health (Criminal Law) Review Board [2016] IEHC 341.

13. In all the circumstances the court directs that there will be no order as to costs in this matter.