Moore v DLR County Council: Tenant entitled to hearing before late grant of warrant for possession

Here, the Supreme Court held that Order 47 rule 15 of the Rules of the District Court provides a tenant with the right to a hearing before the District Court can issue a warrant for possession on foot of an order for possession, where more than six months has elapsed since the making of the order.

Background

From 1993 to 2010, Moore was a tenant of Dun Laghaire Rathdown County Council. By 2008, however, she had accumulated significant rent arrears (€12,700 as of July 2009). The Council issued a Notice to Quit and Demand for Possession under s 62 of the Housing Act 1966 (since replaced). Thereafter the Council issued District Court proceedings for possession. In December 2008 Dun Laghaire District Court granted the Council an order for possession.

The Council did not seek repossession immediately as Moore agreed to enter negotiations on payment of the arrears. As by April 2010 no agreement had been reached between the parties, the Council applied to the District Court for a warrant for possession for execution by the Sheriff.

The District Court (Ejectment) Rules 1999 (here) amended the rules of the District Court to provide that a warrant for possession could be issued ex-parte for up to six months after the making of an order for possession. After six months, the plaintiff must make an application to the court on notice to the defendant. In this case more than six months had elapsed, and the Council did not put Moore on notice. Instead, in April 2010 the Council wrote to the District Court seeking a warrant on foot of the 2008 order. The District Court issued the warrant, and the Sheriff executed it in May 2010.

Moore issued High Court proceedings seeking an order quashing the warrant for possession, a declaration that the eviction was unlawful, a mandatory injunction directing that the Council restore her into possession of in her former home and seeking damages for a breach of her constitutional right to the inviolability of her home.

The High Court, Peart J (here) found that the warrant was issued unlawfully. But Moore had engaged with the Council after the order for possession was made, the Council had informed her that eviction was proceeding, the Council had advised her to seek alternative accommodation and she did not issue legal proceedings until after the eviction had been executed. Given those factors, Peart found that the Council did not consciously or deliberately breach Moore’s rights, Moore was not prejudiced by the illegality and that refusing to grant reliefs would not be disproportionate.

Moore appealed to the Supreme Court.

 

Supreme Court

On appeal, Moore accepted that, given the passing of time since her eviction, it would not be appropriate to seek an order reinstating her in her former home. She was seeking a declaration that the warrant was unlawful and that she should be entitled to damages.

In a single judgment to which all three judges contributed (Clarke, Laffoy and O’Malley JJ), the Court pointed out that the rules of the District Court are a form of delegated or secondary legislation. Therefore there was a legal and binding obligation on the Council to put Moore on notice of the application for the warrant [3.4]. The introduction of that rule meant that Moore (and others in similar positions) had a right to be heard in opposition to the warrant. That right may mean that a judge should review the merits of granting a warrant for possession with regard to the interference with rights guaranteed under Article 8 of the European Convention of Human Rights. Although, the Court stated that it was not necessary to decide that issue for the purposes of this case [3.5].

The Court held that, by not allowing Moore the right to a hearing before the issue of the warrant outside of the six month period, she had been denied “a significant entitlement that the law confers” [3.9]. The Court also held that the High Court’s proportionate analysis was inappropriate given that it had been established that an illegality led to Moore’s eviction from her home [4.4]. This case did not involve the balancing of Moore’s rights against the council’s obligation to manage housing stock. What was at stake was the rule of law [4.7]. The problem with the warrant was not a technicality or an absence of authority on the face. The warrant was “unlawful in a most fundamental way” [4.8]. In those circumstances it was not open to the High Court to decline to make any orders [4.14].

 

Orders

The Court declined to determine whether it would have been appropriate, at the time, for the High Court to make an order placing Moore back in possession of her home. Although it would not rule out the granting of such an order. And the fact that the Council could issue new proceedings for an eviction would not justify declining such an order [5.2].

But the circumstances of this case had moved on beyond that possibility.

The Court granted a declaratory order that Moore’s eviction was unlawful and that she was, at the level of principle, entitled to damages.

Advertisements
Leave a comment

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: