Factual and Procedural Background
This was an ex tempore decision on an application for leave to issue judicial review proceedings made on notice to the Respondent, and leave was ultimately refused. [Para 14]
The Applicant and her husband entered a fixed-term tenancy with the Notice Party, but the Applicant said the arrangement had been superseded by a licence agreement; that was disputed by the Notice Party. [Para 17]
The dispute arose after the Applicant told the Notice Party he would not be allowed back into the property unless an invoice was paid, the locks were changed, and no notice of termination had been served; the Notice Party then applied to the Respondent for adjudication. [Para 19]
The adjudicator found the termination unlawful and awarded €15,000 damages, after which the landlords appealed to a Tribunal that heard the matter de novo and later found that the tenancy fell within the Act, there had been unlawful interference with peaceful occupation, unlawful termination, and unlawful retention of a €850 deposit. [Para 23][Para 34][Para 37]
The Applicant then pursued judicial review leave, while also having a separate statutory appeal on a point of law from the Tribunal determination, which the court noted had a suspensive effect. [Para 40][Para 49]
Legal Issues Presented
- Whether leave should be granted to challenge the Tribunal determination by judicial review at all. [Para 14][Para 138]
- Whether the Applicant could use judicial review to attack the Tribunal’s finding that the arrangement was a tenancy rather than a licence, despite having a statutory appeal on a point of law. [Para 166][Para 168][Para 170]
- Whether alleged procedural unfairness, including refusal of adjournments, justified judicial review. [Para 170][Para 184]
- Whether alleged bias, conflict of interest, and contamination of the decision-making process met the arguable grounds threshold. [Para 188][Para 200]
- Whether the Tribunal failed to consider the Applicant’s daughter’s disability, family vulnerability, social welfare concerns, and the condition of the property. [Para 186][Para 187][Para 247]
- Whether time could be extended to challenge a separate Tribunal determination referred to by the Applicant. [Para 143][Para 154]
Arguments of the Parties
Applicant's Arguments
- The Applicant sought certiorari, a stay, declarations of ultra vires action, declarations of unfair procedures and bias, and consequential relief. [Para 100][Para 114]
- She argued that the Respondent mischaracterised a licence as a tenancy, ignored relevant evidence about the property’s condition and the family’s circumstances, and awarded compensation on an unreasonable basis. [Para 102][Para 110]
- She also alleged breaches of fair procedures, constitutional rights, ECHR rights, and UNCRPD rights, and sought remittal for a fresh determination with protections for her daughter. [Para 118][Para 126]
- She maintained that the Tribunal process was biased and procedurally flawed, and that the Equal Status Act and Article 42A protections were engaged. [Para 188][Para 193][Para 238][Para 246]
Respondent's Arguments
- The Respondent objected that the Applicant’s daughter was not a party to the underlying dispute and that issues concerning her were irrelevant to the judicial review. [Para 130][Para 135]
- The Respondent also maintained that the landlord-tenant dispute was narrow and did not concern the property’s condition or the family’s broader circumstances. [Para 140][Para 141][Para 159][Para 166]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| O'Donnell v. Dun Laoghaire Corporation |
Time may be extended only on a good and sufficient objective reason, with a causal link to the delay. [Para 144] |
The court relied on it to refuse an extension of time for the out-of-time challenge to the separate determination. [Para 144][Para 153] |
| Amariei v. The Chief Appeals Officer |
The default position is that a statutory appeal or review should be pursued rather than judicial review. [Para 168] |
The court used it to hold that judicial review should not be allowed where the Applicant already had an extant statutory appeal. [Para 168][Para 170] |
| G v. DPP |
Leave stage acts as a filtering process to exclude trivial or unstateable cases. [Para 182] |
The court applied it when assessing whether the Applicant had arguable grounds. [Para 182][Para 183] |
| Esmé v. Minister for Justice and Law Reform |
An arguable point must have a rational preliminary prospect of success. [Para 182] |
The court used it to conclude that the Applicant’s complaints did not meet the arguable grounds threshold. [Para 182][Para 183] |
| Kelly v. UCD |
The bias test is whether a reasonable and informed observer would have a reasonable apprehension of bias. [Para 194][Para 196] |
The court applied the test and found no material supporting a reasonable apprehension of bias. [Para 196][Para 199] |
| Corrigan v. Irish Land Commission |
A court should not interfere where suspected bias was present at the tribunal hearing but not raised there. [Para 196] |
The court relied on it in rejecting the bias complaint because the Applicant did not raise the issue before the Tribunal. [Para 196][Para 197] |
| Akram v. Residential Tenancies Board |
Bias allegations should be made cautiously and with substantiation. [Para 204] |
The court endorsed that approach and noted the Applicant’s bias allegations were unsubstantiated. [Para 204][Para 205] |
| O'Sheehan v. RTB |
Complaints about the adequacy of reasons may be pursued by statutory appeal rather than judicial review. [Para 235] |
The court cited it in rejecting the argument that inadequate reasons justified judicial review. [Para 235][Para 236] |
| AG v. Davis |
Same principle: inadequacy-of-reasons complaints are generally for appeal. [Para 235] |
The court relied on it alongside O'Sheehan to reject judicial review on that basis. [Para 235][Para 236] |
| Beatty v. Rent Tribunal |
Referenced in support of the proposition that quasi-judicial functions are not a public service under the Equal Status Act. [Para 256] |
The court cited it when holding that the Equal Status Act did not apply to the Respondent’s adjudicative function. [Para 256][Para 260] |
| Miley & ors v. Employment Appeals Tribunal |
Also cited for the same Equal Status Act principle. [Para 256] |
The court used it with Beatty to reject the Applicant’s discrimination-based ground. [Para 256][Para 260] |
| X v. Residential Tenancies Board ADJ-00026773 |
WRC authority cited for the view that RTB adjudication is quasi-judicial, not a “service” under the Equal Status Act. [Para 256][Para 259] |
The court referred to it as supportive, though expressly noted it was not binding. [Para 256][Para 259] |
| Fitzpatrick v. Residential Tenancies Board |
It is doubtful that quasi-judicial landlord-tenant decision-making is a “service” under the Equal Status Act. [Para 260] |
The court used it to conclude that the Equal Status Act ground was misconceived. [Para 260] |
Court's Reasoning and Analysis
The court first dealt with the Applicant’s attempt to challenge a separate Tribunal determination. It found that any such challenge was well out of time, that the Applicant had not explained the delay with medical evidence or other adequate material, and that the third party had already complied with that order long ago. [Para 143][Para 146][Para 150][Para 153]
The court then held that the existence of an extant statutory appeal was a decisive reason not to allow judicial review on the jurisdictional error ground, especially where the Applicant was effectively asking the court to revisit whether the arrangement was a tenancy or a licence. [Para 166][Para 168][Para 170]
On the adjournment and fair procedures complaint, the court accepted that the landlords had been warned in advance that adjournments would be granted only in exceptional circumstances and on documentary proof, and found that the Applicant had not shown prejudice because the Tribunal hearing was de novo and a second landlord could have attended. [Para 170][Para 179][Para 184]
The court treated the complaints about the property’s condition, the family’s health, hardship, and prior compensation as irrelevant to the narrow landlord-tenant issues the Tribunal had to decide. It also held that complaints about the invoice or quantum were matters for the statutory appeal rather than judicial review. [Para 186][Para 187][Para 159][Para 166]
The bias argument failed because the Applicant had not raised it before the Tribunal when she knew the Chairperson’s identity, the prior case was distinct and unconnected, and the record contained no material supporting a reasonable apprehension of bias. [Para 196][Para 199]
The court also rejected the procedural ultra vires and disability-based grounds. It held that the Applicant’s daughter was not a party to the dispute, that Article 42A did not apply to these proceedings, that the Equal Status Act did not govern the Respondent’s quasi-judicial function, and that the claimed constitutional and Convention rights were not engaged on the facts before the Tribunal. [Para 206][Para 215][Para 251][Para 260]
Finally, the court held that no stay was needed because the Applicant’s statutory appeal already operated as a stay of enforcement. [Para 265]
Holding and Implications
LEAVE REFUSED. The Applicant was not granted leave to issue judicial review proceedings on any ground, and the court indicated it would hear the parties on costs. [Para 14][Para 138][Para 266]
The direct effect was that the judicial review challenge could not proceed, while the Applicant’s separate statutory appeal remained the appropriate route for any permissible challenge on a point of law. [Para 49][Para 170][Para 265]