The High Court set aside leave for Vicky Leonard to seek declarations that section 62 of the Housing Act 1966 was unconstitutional, lifted stays on a possession warrant and her Circuit Court appeal, and left the remainder of its earlier order in place.
In a judgment delivered on 3 December 2007, Mr Michael Peart said the court could set aside leave granted on an ex parte basis where, after hearing the affected party, it was satisfied the case disclosed no reasonable cause of action and was doomed to fail. He said that could apply where relevant case law had not been brought to the court’s attention at the leave hearing.
Dublin City Council had obtained a District Court possession order on 15 February 2007 under section 62. The council’s case was that Leonard breached her tenancy agreement by allowing her partner, Mark Keating, onto the property after the council had notified her that he was excluded. The judgment records that Leonard admitted the breach. She did not challenge the council’s decision to issue a notice to quit or the notice itself.
Leonard’s judicial review application challenged the constitutionality of section 62 and sought relief concerning the District Court determination. She said she had been unable to obtain legal representation for the possession hearing, that her request for an adjournment was refused, and that she did not understand the proceedings. The council argued that earlier court decisions had upheld section 62 and that her arguments did not meet the threshold for judicial review. It also argued that a Convention remedy, if available, would not justify a stay.
Peart J said Leonard had not explained what case she could have advanced with a lawyer present. Given the required proofs under section 62 and her admission of the tenancy breach, he found that her fair-procedures complaint did not pass the arguability threshold. He also held that the council’s policy of serving notices on tenants who breached the relevant tenancy clause could no longer reasonably be argued to fetter its discretion, in light of earlier decisions.
The judge distinguished the European Court of Human Rights decision in Connors v the United Kingdom, noting that the circumstances differed and that Leonard had admitted the breach and had several opportunities to make representations. The order did not determine the substantive appeal in the Circuit Court: it lifted the stay on that appeal and the stay on the possession warrant. The court set aside leave only insofar as it concerned declarations of unconstitutionality of section 62; the remainder of the earlier order stood.