The Court of Appeal has dismissed Eamon McCauley’s appeal against the refusal of his judicial review challenge to a possession order for a dwelling at Ballinacarrick, Ballintra, Co Donegal.
The appeal concerned an order made in June 2015 by Judge Karen Fergus in favour of Donegal County Council under section 62 of the Housing Act 1966. The High Court dismissed Mr McCauley’s judicial review application in December 2015. The Court of Appeal, in a judgment delivered by Mr Justice Gerard Hogan on 7 February 2018, concluded that Judge Fergus had not erred in her interpretation of the Act and dismissed the appeal.
Mr McCauley argued that the dwelling was his home for the purposes of Article 8 of the European Convention on Human Rights and that the summary procedure prevented him from presenting evidence about his connection to it. He said an independent assessment should determine whether the property was his home and whether possession would be proportionate.
The judgment recounts that Mr McCauley moved into the property in December 2012 to care for his seriously ill brother, Liam, who had been the tenant. Liam died in March 2013. The Council refused Mr McCauley’s later application for housing support, saying it was not satisfied he had occupied the property for the previous two years and his income had not been included in calculating rent. The Council began possession proceedings in March 2014. The District Court granted possession in January 2015, and the Circuit Court affirmed that order after an appeal.
The Court of Appeal said the European Convention had not been incorporated directly into Irish domestic law. Under the European Convention on Human Rights Act 2003, courts must interpret legislation compatibly with the Convention where that interpretation is reasonably open. But prior case law treated the statutory possession procedure as mandatory once its specified requirements were proved. The Court of Appeal held that it could not interpret the provision to add a separate hearing on whether the dwelling was Mr McCauley’s home or whether possession was proportionate.
The court also noted that no declaration of incompatibility had been sought and that the argument that the Council breached its duties as a State authority under the 2003 Act had not been advanced. It did not decide that unadvanced argument. A later statutory change requiring a proportionality assessment did not govern this case because it had not commenced when the proceedings were heard.