Council restricted in right to evict tenants


Supreme Court judgment:Donegan Gallagher -v- Dublin City Council Ors


Judgment was delivered by Mr William McKechnie on February 27th 2012, Mr Justice Murray, Mr Justice Hardiman, Mr Justice Fennelly and Mr Justice Finnegan concurring


The court made a declaration that Section 62 (3) of the Housing Act 1966, providing for obtaining in the District Court a warrant for possession of a local-authority dwellingfrom a tenant, is incompatible with Article 8 of the European Convention on Human Rights, incorporated into Irish law in the Act of 2003.


Two cases came to the Supreme Court on appeal from the High Court, both relating to the mechanism whereby Dublin City Council sought possession of two of its properties.

The first concerned a man, Anthony Donegan, who was asked to leave the house he had occupied since 2002, having previously lived in a Dublin City Council apartment. His son lived with him.The council sought possession of the house on the grounds of anti-social behaviour, claiming the son was a drug dealer. Mr Donegan contested this, stating he was a drug addict who was addressing his addiction, showing the council letters from a clinic and a doctor to this effect.

Mr Donegan was served with a notice to quit, which came before the District Court in February 2005. This was adjourned following the initiation of a High Court challenge.

In the High Court, Ms Justice Laffoy found that, because there was no independent machinery to resolve a dispute on the facts

of a complaint against a tenant, the complainant’s rights to protection of his home, other than in accordance with the law, had been violated, and Section 62(3) of the Act was incompatible with the European Convention on Human Rights.

The second case concerned a man who sought to succeed to his mother’s tenancy of a Dublin City Council dwelling following her death. He had lived in the house with his mother for several years until 1995, when he moved in with his partner for two years. At this point, his name was removed from the rent account and was not restored when he moved back.

Succession of tenancy depends on two conditions: having lived in the house for at least two years prior to the death of the main tenant and being on the rent account. The council claimed he did not fulfil these conditions and sought possession of the house.

In the High Court, Mr Justice ONeill found that, because the District Court had no discretion to examine the underlying merits of the case or examine the procedures employed by the council, the Section 62 procedure was incompatible with the EuropeanConvention on Human Rights.

The state appealed both decisions to the Supreme Court, arguing that the remedy of judicial review was adequate to address any deficiencies in the decision-making process, and that disrupting the operation of Section 62 would impose an intolerable burden on the council.


In relation to the remedy of judicial review, Mr Justice McKechnie said that this could not resolve a conflict on matters of fact, such as arose in these cases. The most a successful judicial review could have done was set aside the decision but leave the basic dispute unresolved. It could not substitute its own findings of fact.

He rejected the argument that the Meadowes decision had broadened the scope of judicial review sufficiently to address the matters raised here. It did not alter the position that judicial review could not be used as a rehearing to determine conflicts of fact.

He rejected the “floodgates” argument, pointing out that the Council itself had acknowledged that Section 62 (3) is only used in a small number of cases, and in most of these there would be no dispute as to the facts.

In relation to Mr Donegan, who would have been rendered homeless by the action of the council because of vicarious responsibility for the conduct of his son, the court upheld the High Court judgment.

In relation to Mr Gallagher, he acknowledged that his name was not on the rent account from 1997, he was not a legal tenant of the council thereafter, so he did not fulfil one of the conditions for succeeding to the tenancy. His Article 8 rights could not be invoked and he was not entitled to relief.

He granted the declaration of incompatibility in relation to Section 62 (3) of the 1966 Act.

The full judgment is on

Patrick Gageby SC and Niall Buckley BL and Ronan Kennedy BL, instructed by Garret Sheehan Partners, for Donegan; James O’Reilly SC and Olwyn Bennett BL, instructed by Niall Corr, solicitor, for Gallagher; Nuala Butler SC, Conleth Bradley, Mema Byrne BL and Carol O’Farrell BL, instructed by DCC’s Law Agent, for the Council; Eoin Fitzsimons SC and Paul McGarry SC, instructed by the Chief State Solicitor, for the State.