SM and Anor v Dublin City Council (Approved)

Factual and Procedural Background

The Plaintiffs (a mother and her minor daughter) sought judicial review of a decision of Company A dated 2 August 2024 refusing to disregard the order of priority under section 22(7) of the Housing (Miscellaneous Provisions) Act 2009 and thereby refusing to grant them priority on Company A's social housing list. The Plaintiffs had been on the ordinary social housing list since June 2018. The mother averred that she and the minor Plaintiff had been subject to physical and psychological domestic violence by her former partner and that her daughter had made significant allegations of sexual abuse. Company A refused priority in 2019 and again in December 2023; a review was refused on 26 March 2024 and maintained on 17 April 2024. Company A issued the impugned decision on 2 August 2024. The Plaintiffs sought judicial review and were granted leave on 11 November 2024.

Following correspondence and further engagement, Company B provided short-term emergency accommodation to the Plaintiffs from 26 September 2024. Company A wrote on 9 December 2024 indicating that, by reason of the Plaintiffs' position on the ordinary list (no. 114 at that time), they were within an offer zone for choice based lettings and that a property was expected in early 2025. The Plaintiffs issued pre-action correspondence and then proceedings. Company A reiterated it continued to treat the Plaintiffs' request on the basis of their ordinary waiting-list position and, by a letter of 8 January 2025, supplied additional reasons for refusal not contained in the 2 August 2024 decision. The Plaintiffs were permitted to amend their statement of grounds on 25 March 2025 to challenge those additional reasons.

Delivery of the choice based letting was delayed, causing multiple adjournments. The Plaintiff was offered housing on 11 April 2025 and accepted. Both sides accepted that the offer and acceptance rendered the proceedings moot. The judgment on costs was delivered by Judge Ferriter on 13 February 2026.

Legal Issues Presented

1. Whether the Plaintiffs were successful on the "event" for the purposes of section 169 of the Legal Services Regulation Act 2015 such that they should be entitled to an award of costs.
2. Whether the mootness of the proceedings was caused by a unilateral act of Company A (namely the offer of housing) made in response to the proceedings.
3. If mootness was caused by a unilateral act of Company A, whether Company A has shown that the act was not undertaken in response to the proceedings.
4. If the default costs result is not applied, whether the interests of justice require an alternative costs order in favour of the Plaintiffs.

Arguments of the Parties

Plaintiff's Arguments

• The core purpose of the proceedings was to secure housing; shortly after institution the Plaintiffs obtained housing, and thus they were successful on the event under section 169 and entitled to full costs.
• Alternatively, the mootness was caused by a unilateral act of Company A (the offer of housing) which was timed to render the proceedings moot; therefore costs should follow against Company A.
• Exceptional factors justified an award of costs: lack of substantive response to pre-action letters; Company A failed to disclose that an offer was imminent prior to proceedings; multiple adjournments while Company A aligned ordinary lettings to the proceedings; and Company A later added new reasons for refusal (letter of 8 January 2025) which required amendment of the Plaintiffs' grounds.

Defendant's Arguments

• Company A contended the property was offered in the ordinary course of its housing management and by reason of the Plaintiffs' position on the ordinary list, not as a response to the proceedings.
• Company A relied on affidavit evidence (from Attorney Hayes) that the offer was expected in the first quarter of 2025 and that the application ripened into an entitlement on ordinary operation of the list.
• Company A submitted it could not lawfully make representations about potential availability before the Plaintiffs' entitlement on the list arose and denied timing the offer to avoid costs.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Ferriter adopted the legal framework from Hughes and noted the jurisprudential shift to focusing on the cause of mootness. He referenced the guiding questions from Hughes, including (i) the specific event causing mootness, (ii) whether it was outside the control of either party, (iii) whether it was caused by unilateral actions, and (iv) if so, whether those actions were taken in response to the proceedings.

The court rejected the Plaintiffs' contention that they had succeeded on the "event" for section 169 purposes because the relief sought challenged refusal to grant priority under section 22(7) of the 2009 Act, and Company A did not reverse that decision by placing the Plaintiffs on the priority list. The court therefore proceeded under the Hughes mootness principles.

The court accepted that the offering of housing made the proceedings moot but examined whether Company A had shown the offer was not made in response to the proceedings. The court accepted the affidavit evidence of Attorney Hayes that the property became available in the ordinary course, that the Plaintiffs' position on the ordinary list meant they were within the choice based lettings offer zone, and that the housing was offered as a result of ordinary housing management processes rather than a change of mind or a concession in response to litigation. The court stated it could not look behind those averments.

Having found that Company A discharged the onus of showing the offer was not taken in response to the proceedings, the court applied the default rule that each party should bear its own costs. The court then considered whether interests of justice factors warranted departing from that rule. It acknowledged the Plaintiffs and their legal team acted reasonably and sympathetically described the Plaintiffs' position, but concluded that matters raised (including possible earlier disclosure by Company A and the addition of reasons in the 8 January 2025 letter) did not permit the court to award costs without straying into the merits. The court therefore declined to order costs against Company A.

Holding and Implications

NO ORDERS AS TO COSTS

Holding: The court ordered that there be no order as to costs — each party to bear its own costs — because Company A demonstrated that the offer of housing rendering the proceedings moot arose in the ordinary course and not as a response to the proceedings, and the interests of justice did not require a different result.

Implications: The immediate effect is that neither party recovers costs of these judicial review proceedings; the court indicated a provisional view that the same order should apply to the subsequent costs hearing, subject to any application by the parties. The judgment does not purport to establish a new precedent beyond applying the principles set out in Hughes.