High Court of Ireland Decisions

1. The Applicant Margaret Byrne is a married woman residing at 14 Mariner’s Port, Sheriff Street, Dublin 1. In these proceedings she seeks an order of certiorari quashing the order of the Respondent judge made the 20th of November 1998 granting to the second Respondent (hereinafter referred to as Dublin Corporation) a warrant for the delivery of possession of premises at 14 Mariner’s Port, Sheriff Street Dublin 1, being premises let by Dublin Corporation to the Applicant in about the 7th of November 1995 as a weekly tenant at a weekly rent of £20.00 pursuant to the provisions of the Housing Act 1966 which said tenancy Dublin Corporation purported to determine on about 17th day of August 1998 by the service upon the Applicant of a Notice to Quit dated 15th day of June 1998. The Applicant further seeks a declaration that the Respondent judge in making the order of 20th of November 1998 failed to comply with principles of natural and constitutional Justice and basic fairness of procedures. The grounds upon which the relief is sought by the Applicant is that the Respondent judge failed to comply with the principles of natural and constitutional justice and basic fairness of procedures in proceeding to hear the application of Dublin Corporation against the Applicant in the absence of legal representation being afforded to the Applicant and in refusing to adjourn the proceedings until such times as civil legal aid has been granted to the Applicant in that:-

2. The Applicant has sworn an affidavit in which she deposes that she resides with her husband and five of her 8 children at her address in Sheriff Street. She states that the children residing with her, include her son Noel aged 25 years, Eamonn aged 17 years, together with children of 10 years, six years and five years of age. She stated that she has resided in her premises for approximately for 3 years. She says that it was held by her until the month of November 1998 as a tenant from week to week pursuant to a letting agreement between her and Dublin Corporation dated 7th of November 1995. This agreement is exhibited in the Applicant’s affidavit and shows that the tenancy was between Dublin Corporation on the one part and Christopher Byrne and the Applicant Margaret Byrne of the other part. Under the provisions of Clause 13 of this agreement it is provided that neither the tenant nor any member of his household or any household or any subtenant or visitors shall cause any nuisance, annoyance or disturbance to any neighbours, their children or visitors or to Corporation staff. It is further provided that a tenant evicted for breach of this condition or part of it will be deemed for the purposes of rehousing to have deliberately rendered himself homeless within the meaning of section 11 (2) (g) of the Housing Act 1988 and may not be provided with another home by the Corporation until such time as the Corporation is satisfied that the evicted tenant and his family are capable of living and are agreeable to live in the community without causing a further breach of this condition. At Clause 25 it is provided the Corporation shall have a right to re-enter upon and resume possession of the dwelling for breach, non-performance or non observance of any of the provisions of the letting conditions. At Clause 26 it is provided that the tenancy may be terminated at any time on the giving of four weeks notice by the tenant or the Corporation. This provision also provides various means by which a Notice to Quit may be served by the Corporation on the tenant.

3. The Applicant deposes in her affidavit that on about the 15th June 1998 a Notice to Quit and demand for possession was served on her by Dublin Corporation whereby she was required to vacate her flat on the 17th of August 1998. This Notice to Quit has been exhibited by the Applicant in her affidavit. The Applicant continues by stating at paragraph 4 that at the time of the service of the Notice to Quit upon her, she was fully up-to-date with rent, save for arrears of approximately of £400.00. She states that she had entered into an arrangement with Dublin Corporation to pay the arrears by way of weekly instalments. She says she pays a weekly rent of £32.00 per week to include a contribution of £12.00 to discharge arrears. She deposes that she was not in breach of any covenants contained in the letting agreement and she does not believe that there then existed any circumstances which might justify Dublin Corporation deciding to serve the said Notice to Quit upon her. The Applicant states that she was not informed of the reason for the service on her of the Notice to Quit, nor was she given an opportunity to discuss this with Dublin Corporation. She says she has sought information from Dublin Corporation as to the reasons for the termination of her tenancy and that she has been given no explanation, other than the reasons for “ good estate management ”. At paragraph six of the Applicant’s affidavit she states she did not vacate her flat as she was required to do by the Notice to Quit and that Dublin Corporation by summons dated 28th of August 1998 commenced proceedings against her in the District Court to recover possession of the premises. She states that the proceedings came on for hearing in Court no. 53 in the Richmond Hospital, Dublin 7 on the 2nd of October 1998 and on that date the District Judge acceded to her application for an adjournment of the proceedings in order that she might apply for civil legal aid. She says that the matter next came on for hearing before the District Court on 30th of October 1998 when she once again appeared before the Court without legal representation and informed the District Judge that while she had applied for and was deemed eligible for legal aid, she had been informed that there would be a delay of six months until she would receive an appointment to see a solicitor. In these circumstances the District Court agreed to adjourn the matter once again to the 20th November 1998, but indicated that the matter would go ahead on that date and that she should inform the Law Centre the matter was an urgent one which necessitated the granting of legal aid immediately. The Applicant continues at paragraph 7 of her affidavit stating she once again appeared in the District Court without legal representation on the 20th of November 1998 and indicated to the Court that she had requested immediate emergency legal aid from the Law Centre, but she had been advised that it would be a period of approximately a further four months before she would received an appointment to be seen by a solicitor. In these circumstances she states that the Respondent judge proceeded to hear the application of Dublin Corporation for a warrant for possession of the premises and in that connection the Court heard evidence adduced by Dublin Corporation following which an order for possession of the premises was made against her. The Applicant states that as a result of her lack of any legal representation on each occasion when she appeared before the District Court and as a result of her lack of any legal advice whatsoever generally in relation to her situation, following the service of Notice to Quit upon her, she was not aware of any other legal remedy that might be available to her at the time in answer to the proceedings brought by Dublin Corporation. She states that she is currently in receipt of the sum of £175.00 per week social welfare. She says that her husband Christopher who resides with her is unemployed and has been unemployed for 18 years. She states she has no assets and is not able to provide accommodation for herself, her husband or her children and if she is required to give up possession of her flat, she together with all of her children will be homeless.

4. A Statement of Opposition was filed on behalf of Dublin Corporation in which it is pleaded that the order made by the Respondent judge on the 20th of November 1998 was lawfully made and was intra vires the provisions of the section 62 of the Housing Act 1966 as amended. It is denied that the Respondent judge in making his impugned order failed to comply with the principles of natural and constitutional justice and basic fairness of procedures as alleged or at all. It is further pleaded that the Respondent judge at all times acted within his jurisdiction in granting the order pursuant to the obligations imposed upon him by the provisions of the Housing Act 1966, as amended, and in particular section 62 thereof. It is denied that in proceeding to hear the application of Dublin Corporation, in the absence of legal representation being afforded to the Applicant, and in refusing to adjourn the proceedings until such time as legal aid had been granted to the Applicant, that the first named Respondent (that is the learned judge of the District Court) failed to comply with the principles of natural and constitutional justice and of basic fairness of procedures. It is further pleaded that the Respondent judge afforded the Applicant at all material times opportunities to make the necessary applications for legal aid and the processing of this application and the attendance of a legal representative was a matter for the Applicant herself. It is further denied by Dublin Corporation that the Respondent judge in any way denied the Applicant the benefit of any legal representation at the hearing of the application and proceedings issued pursuant to section 62 of the Housing Act 1966.

5. On behalf of Dublin Corporation an affidavit has been filed in which Gerardine O’Callaghan deposes in support of the Statement of Opposition that in or around January of 1998 Dublin Corporation received complaints from local residents and the Gardaí in relation to the behaviour of tenants at the Applicant’s premises. It is stated that in January of 1998 Dublin Corporation wrote to the Gardaí for information in relation to the complaints and two reports were received from the Gardaí confirming serious anti-social behaviour, which constituted a breach of conditions of the letting and /or tenancy agreement of the tenants. At paragraph 6 of her affidavit Ms O’Callaghan states that on the 2nd of June 1998 a letter was sent to the tenants asking them to attend for interview and that on the 8th of June 1998 the Applicant was interview by Ms O’Callaghan with Mr Dick Wheelan of the Estate Management Section of the Corporation also in attendance. It is stated that the Applicant was informed of serious complaints on file in relation to members of her family and she denied allegations of anti-social behaviour when confronted with the Garda reports. While copies of the correspondence addressed to the tenants has been exhibited, the correspondence does not outline the nature of the anti-social behaviour alleged. It is pointed out by Ms O’Callaghan that the Applicant was informed that a Notice to Quit and Demand for Possession would be served upon her and her husband because of the seriousness of the allegations. It is indicated that she was told that there was deemed to be a breach of her tenancy and the service of the Notice to Quit and Demand for Possession and the ensuing procedures pursuant to section 62 of the Housing Act 1966 were explained to her. It is pointed out that on the 9th of June 1998, following this interview, a letter was sent to the tenants informing them that they were in breach of section 13 of their tenancy agreement and conditions of letting. Ms O’Callaghan has deposed further that on the 19th of October 1998 she spoke to the Applicant over the phone and she was offered an appointment to discuss matters, but declined this offer. Ms O’Callaghan continues that on the 30th of November 1998 Eileen Martin and herself interviewed the Applicant and her son Noel Byrne, when again the reason for the service of Notice to Quit and Demand for Possession and the procedures pursuant to section 62 of the Housing Act 1966 were explained. With regard to the Applicant’s complaints regarding legal representation Ms O’Callaghan points out that the Applicant was informed of the Notice to Quit and Demand for Possession as early as June of 1998 and therefor had an adequate and reasonably opportunity to take appropriate legal advice. She further relies upon the fact that the proceedings were adjourned on a number of occasions to facilitate the Applicant in this regard.

6. It is to be noted from the evidence before this Court that no challenge exists in relation to the Applicant’s averments relating to her attempts to obtain legal representation and in relation to what transpired in the District Court before the Respondent judge. Accordingly while the Legal Aid Board is not a party to these proceedings, insofar as no issue has been raised by Dublin Corporation in relation to what was urged by the Applicant before the learned District Court judge, this court must proceed on the basis that what was stated by her is correct in fact. In these circumstances it is understandable that the District Court judge may have felt frustrated when he learned that there was to be a delay of several months if the Applicant was to be afforded a period of time to obtain legal representation from the Legal Aid Board on the basis of an emergency certificate. The essential issue, however, that remains in these proceedings is whether in the circumstances the learned judge of District Court acted in excess of jurisdiction in proceeding with the application of Dublin Corporation for a warrant for the possession of the Applicant’s premises.

7. The Applicant’s case is essentially that at the time of the hearing in the District Court, the subject matter these proceedings, the Applicant was a person in need of civil legal aid who had been deemed eligible for legal aid by the Legal Aid Board and that given the fact that she was facing the possible loss of her home for herself and her family she had a right to legal advice generally in relation to the situation is which she found herself and particularly in relation to legal representation in proceedings before the District Court itself. It is submitted that legal advice generally might have led to a full examination of the procedures adopted by Dublin Corporation in seeking to evict the Applicant from her home, possibly leading to a request for further information from Dublin Corporation.

8. On behalf of the Applicant Mr. Donal O’Donnell S.C has placed reliance on a number of authorities including Dublin Corporation -v- Hamilton [1998] 2 ILRM 542 in which Geoghegan J indicated that an application of this nature before the District Court involves two certain essential proofs being satisfied in the District Court including a demand being duly made for possession. In that case Geoghegan J indicated that such an essential proof at the hearing might be subject to challenge and cross examination. Geoghegan J held that the formal proofs required in an application under section 62 are those matters set out in the section and they alone were required to be satisfied before the District Court. The Applicant further relies on the decision of Wynne -v- Dublin Corporation (unreported, High Court, Shanley J, 22nd July of 1998) in which the High Court held that the power to evict required the Housing Authority to take into account all relevant circumstances at the date of issue of the Notice to Quit. Furthermore Counsel for the Applicant relied upon the decision of the Court of Appeal in England in the case of Bristol District Council -v- Clarke [1975] 3 All ER 976 which decision was referred to with approval by Shanley J in the decision in the Wynne case already referred to herein. It is to be noted however that the former of these two decisions referred to by Counsel for the Applicant in this regard were Judicial Review proceedings challenging the decision of the Local Authority to issue a Notice to Quit and were not directed to the decision of the Courts granting a warrant for possession.

9. Counsel for Applicant states that it appears to be common case that the Applicant was entitled to legal aid in defending the proceedings in the District Court and relies upon the fact that the Applicant applied for and was deemed eligible for legal aid and furthermore that the District Court judge adjourned the case on two occasions to allow the Applicant to make application for legal aid. It is furthermore pointed out that Dublin Corporation did not object to either of these adjournments. Be that as it may, it is submitted on behalf of the Applicant that she had a right to legal aid in that:-

10. Counsel for the Applicant has relied upon a number decisions of the Superior Courts in support of the submission made. Essentially the the case is made that the Applicant was deprived of fair procedures and of the requirements of natural justice. Based upon these principles it is submitted that the Applicant should not have been deprived of the benefit of a solicitor being in attendance to represent her on the occasion of the application by Dublin Corporation. Furthermore, the Applicant relies upon the provisions of the Constitution in support of contention that, in so far as the case being taken by Dublin Corporation was being taken by a public authority, it amounted to an action being taken by an organ of the State . It is submitted that legal aid was a constitutional right in such circumstances insofar as an organ of the State was involved. It is to be noted that there is no challenge as such to the procedures followed by Dublin Corporation in these proceedings. However, it is submitted on behalf of the Applicant that the decision of the District Court Judge impugned in these proceedings is a serious matter from the Applicant’s point of view. It is submitted that the essential matters which are to be proved in the District Court and in respect of which the Applicant should of have the benefit of legal advice and representation at the hearing are as follows:-

11. Counsel for the Applicant has indicated that a further matter which may be capable of being questioned by a tenant in circumstances such as faced by the Applicant would be the background to the application for the warrant such as in the instant case as alleged a breach of the tenancy agreement and in particular Clause 13. With regard to these proofs it does indeed appear appropriate that the tenancy agreement be proved before the District Court. Secondly, that the issue of a Notice to Quit in accordance with the agreement would necessarily follow insofar section 62 subsection 1 of the Act 1966 is based upon there being no tenancy in existence at the time of the application for possession and this arises upon the due termination of the tenancy in the first place. Having regard to the provisions of section 62 subsection (1) (b) it appears that a demand for possession, in this case a Notice to Quit, was an essential proof. It is clear having regards of the provisions of subsection (3) of this section that upon the hearing of the application made by Dublin Corporation the District Court Judge had to be satisfied that the application was duly made under subsection (1) of the section. If he was then satisfied that the demand referred to had been duly made he was then in a position to issue the warrant required by the Local Authority. The provisions of subsection 5 of section 62 indicate that the production of the relevant tenancy agreement amounted to prima facie evidence of the agreement. The same subsection indicates that the demand set forth in the Notice to Quit was a sufficient demand for the purposes of the provisions of section 62 (1) (b) of the Act of 1966, but it would be necessary to show that the Notice to Quit was given to the person against whom the proceedings are brought.

12. Mr. O’Donnell referred this court to the decision in Dublin Corporation -v- Hamilton delivered by Geoghegan J on the 19th of June 1998. In that case Geoghegan J referred to the earlier decision of the Supreme Court in the case of the State (O’Rourke) -v- Kelly [1983]I.R.58 in which the Supreme Court upheld the constitutionality of section 62 of the Housing Act 1966. In that case the Supreme Court indicated that it is only when the provisions of subsection 1 of section 62 have been complied with and the demand duly made to the satisfaction of the District Court Judge, that he must issue the warrant. To quote the words used in the judgment delivered by the Chief Justice for the Court:

13. In his judgment Geoghegan J in the Hamilton case indicates that from his reading of the judgment of the Supreme Court in the O’Rourke case , that that Court considered the constitutionality of the section on the assumption that only formal proofs were required under section 62. In the Hamilton case Geoghegan J rejected the arguments of counsel for the Respondent and indicated that he considered that it was both reasonable and constitutional that there be available to a Housing Authority a rapid method of recovering possession of any one dwelling provided by it without having to give reasons for so doing. At page 548 of the report Geoghegan J stated, inter alia , as follows:

14. Geoghegan J indicated furthermore that a Housing Authority must carry out its obligations in a proper manner and must not abuse its powers or discretions, but if it does so it will be subject to the remedy of Judicial Review. He stated that this is not a matter for the District Court Judge to consider in a hearing under section 62 of the 1966 Act. Geoghegan J indicated further that the word ‘duly’ in relation to making of an application simply refers back to the requirements set out in section 62 (1). He states that one of those requirements relates to the making of a demand and another relates to what is to be contained in the statement of demand. He indicated in his judgment that the requirements under subsection 1 of section 62 are essentially conditions precedent to the bringing of the application in the first instance. He indicated that there are obligations which the Local Authority must have regard to before it ever lodges an application, whereas the reference to the demand being ‘duly made’ is a direct reference to an essential proof at the hearing which might obviously be subjected to challenge and cross examination. He indicated that formal proofs of the matters set out in the section alone are required and the District Judge is not entitled to enquire into anything else.

15. Mr. O’Donnell referred this court to the decision of the Court of the Appeal, Civil Division in England in the case Cannock Chase District Counsel -v- Kelly [1978] 1 All ER152. In that case the Court of Appeal held that a Council tenant who wished to challenge a Notice to Quit on the ground of bad faith or abuse of power should have that matter dealt with in the County Court and the Trial Judge should not adjourn the proceedings to enable the tenant to apply to the High Court for a prerogative order or for a declaration, that is, for Judicial Review. It is submitted that this decision is a variance with the decision of Geoghegan J in the Hamilton case . In the instant case no issue has been raised that the Local Authority acted in bad faith or in abuse of its power in seeking the possession of the subject premises. In light of this fact and in view of the fact that this decision was not referred to Geoghegan J, I would be slow to hold that he would have expressly departed from the consideration of the Court of Appeal were the matter put before him. However, it does appear to me that the decision of Geoghegan J is in line with the earlier decision of the Supreme Court in the O’Rourke case previously referred to and it is only in exceptional circumstances that a Notice to Quit could be challenged in the District Court.

16. With regard to the refusal of the Respondent judge to grant the Applicant an adjournment to obtain legal representation, reliance is placed upon the decision of the Kings Bench Division in the case the King (Harrington) -v- Clare JJ [1916] II IR116. In that case at page 124 of the Report, Chief Justice Campbell indicated that the question whether the defendant had in fact reasonable time depends in every case on the particular facts. The issue is whether there was reasonable time to prepare a defence. In the instant case, Mr. O’Donnell submits that having regard to the matters to be addressed by the District Judge, the Applicant did not have a reasonable time to prepare a defence insofar as she did not have the benefit of Legal Representation or Legal Assistance.

17. Mr O’Donnell has relied upon a number of the dicta of the Supreme Court in the case The State (Healy) -v- Donoghue [1976] IR325.

18. While this particular case concerned a hearing in the District Court without legal aid being granted to two minors who were facing criminal charges, reliance is placed upon some of the principles outlined in the judgment of the Supreme Court in support of the Applicant’s case herein. The facts of the Applicants in the State (Healy) -v- Donoghue case was such that the prosecutors then before the Court were young men aged 16 and 18 years respectively who had no particular educational attainments and no legal knowledge or qualifications and found themselves facing serious charges for which convictions would render them liable to imprisonment. Being without means, they could not themselves engage professional assistance for their defence. In his judgment O’Higgins C J referred to the preamble to the Constitution and stated that in his view the preamble makes it clear that rights given by the Constitution must be considered in accordance with concepts of prudence, justice and charity which may gradually change or develop as society changes and develops and which fall to be interpreted from time to time in accordance with prevailing ideas. He stated that the preamble envisages a constitution which can absorb or be adapted to such changes. He stated that the Constitution did not seek to impose for all time the ideas prevalent or accepted with regard to these virtues at the time of its enactment. At page 348 of the judgment the Chief Justice referred to the provisions of Article 34, which deal with the Courts, he stated :-

19. The Chief Justice in this case referred to Article 38 dealing specifically with criminal trials, which he indicated had to be considered in conjunction Article 34 together with Article 40 Section 3 Subsection 1 under which:-

20. Further reliance was placed upon the judgment of Henchy J in the same case where page 355 of the report he refers to Article 40 Section 3 of the Constitution where he states as follows :-

21. In the same case Griffin J of page 357 of the report stated as follows, having referred to the provisions of Articles of 38 section 1 and Articles 40 section 3 subsections 1 and 2 of the Constitution.

22. Mr O’Donnell referred this court to the decision of Gannon J in the case of

23. Mr O’Donnell sought to distinguish the facts of the instant case from those presenting in the case of C -v- The Legal Aid Board in so far as the circumstances of the latter case were that the parties were civil parties neither which was the State or any emanation of the State and the issue concerned the status of the marriage. In contrast Mr O’Donnell submitted that in the instant case the Applicant, Dublin Corporation amounts to emanation of the State and that different considerations therefore apply to those presenting themselves in the C case before Gannon J. In so far as Gannon J held that the adoption of the Legal Aid Scheme imposed a duty to ensure that the Scheme was administered fairly and fulfilled its purpose, counsel referred to the fact that the Respondent Judge in the instant case had sought to clarify the Legal Aid Board’s position with the Applicant when she presented before him.

24. Mr O’Donnell referred this court to the decision of Lardner J in the case of Stevenson -v- Landy and others delivered the 10th of February 1993 in which the Applicant sough a Judicial Review and an Order of Certiorari quashing a decision of the Legal Aid Board refusing her legal aid in wardship proceedings commenced against her by the Eastern Health Board in the High Court and also quashing a decision of the Appeals Committee of the Legal Aid Board refusing her application for legal aid in those proceedings. In this particular case Lardner J quashed the decision of the Legal Aid Board and the Appeals Committee having regard to the particular nature of the proceedings and the importance of the wardship proceedings to the Applicant and to her infant son. Lardner J at page 8 of the judgment referred to the requirement of paragraph 3.2.3 of the Legal Aid Scheme, that a case be made warranting a conclusion that the Applicant is reasonably likely to be successful and this applies to the Applicants in all civil cases. Lardner J continued as follows:-

25. He stated further as follows in reference to the above mentioned requirement of paragraph 3.2.3 of the Scheme:-

26. In the same case Lardner J referred to the judgment of O’Higgins C J in the case of the State (Healy) -v- Donoghue [1976] IR page 350 where, as previously indicated, the circumstances of a case may be such that if justice is to be done the Defendant should have legal assistance. Lardner J referred to the fact that the statement quoted by him from the judgment of the Chief Justice was made in relation to a criminal prosecution. He stated further as follows:-

27. In the particular case Lardner J indicated that the Applicant had a worthwhile contribution to make to the hearing of the case. Lardner J referred to the nature of the wardship proceedings and the fact that they concerned a child and that the Court was being asked to make orders in relation to the future custody, residence, maintenance and welfare of the child in circumstances where the mother had not the means to be legally represented. Lardner J indicated that the Legal Aid Certifying Committee and the Appeals Committee on appeal should reconsider the applications for legal aid in the light of the views which he had expressed. He stated that it was in his view necessary that this should be done in order that the constitutional requirement that the courts should administer justice with fairness be given efficacy.

28. Mr O’Donnell, S.C for the Applicant further referred this court to the decision of Lardner J in the case of Thomas Kirwan -v- The Minister for Justice, Ireland and the Attorney General (unreported, High Court 29th July 1993). In this particular case the Applicant sought a declaration that the first named Respondent had acted in breach of natural and constitutional justice by his failure to provide the Applicant with free legal aid for the purpose of applying for his release from the Central Mental Hospital in Dundrum and certain ancillary relief. In the particular case Lardner J pointed out that it was for the executive in the person of the Minister for Justice or the Government to enquire into all the relevant circumstances, using fair and constitutional procedures. To assist the Minister for Justice or the Government in the discharge of this function an advisory committee had been set up by the Minister, to advise the Minister

29. Lardner J referred to the nature of the application to the Minister and to the great importance for the public and for the Applicant of the decision. He stated that the decision on any such application terminates in a procedure which is, in his judgment, executive in character as distinct from a judicial procedure. He continued :-

30. He stated further :-

31. In conclusion Lardner J held that the Applicant was entitled as a matter of fairness to legal aid to enable him to present his submissions. It is to be noted that in this particular case Lardner J concluded that if none of the then existing Legal Aid Schemes extended to an application such as that then in contemplation before the Court that it was incumbent on the executive under the Constitution to afford such legal aid as was necessary in the particular case to the enable the application to be effectively made.

32. Mr O’Donnell further referred this court to the decision of the European Court of Human Rights in the case of Airey -v- Ireland delivered on the 9th of October 1979 and reported to 2 EHRR 305. In that particular case the Applicant, who did not have legal aid with which to present a petition for judicial separation in the High Court, lacked the means to employ the services of a lawyer, and legal aid for civil proceedings was not available to her. The Irish Government contended that the Applicant enjoyed access to the High Court since she was free to go before the court without the assistance of a lawyer. The court concluded that it that it was not realistic to suppose that in litigation of this nature, the Applicant could effectively conduct her own case, despite the assistance which, as was stressed by the Irish Government, the judge affords to parties acting in person. What was in issue in these proceedings was the application of Article 6(1) of the European Convention on Human Rights in so far as it related to civil legal aid. The European Court of Human Rights pointed out that it would be erroneous to generalise the conclusion that the possibility to appear in person before the High Court did not provide an Applicant with an effective right of access. It stated that this conclusion does not hold good for all cases concerning ‘civil rights and obligations’ or for everyone involved therein. It stated that in certain eventualities the possibility of appearing before court in person even without a lawyer’s assistance will meet the requirements of Article 6(1); that there may be occasions when such a possibility secures adequate access even to the High Court. It stated that much must depend on the particular circumstances. The obligation on the State might be met in certain cases by the institution of a legal aid scheme on in other cases by a simplification of procedures. The European Court of Human Rights indicated that it was not its function to indicate, yet alone dictate, which measures should be taken; all that the Convention requires is that an individual should enjoy his effective right of access to the Courts in conditions not at variance with Article 6(1). The conclusion of the Court was that the State was not obliged to provide free legal aid for every dispute relating to a civil right. The Court indicated the fact that the Convention contains no provision on legal aid for such disputes. It indicated that Articles 6(1) may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for any effective access to court either because legal representation is rendered compulsory, as is done by the domestic law of certain contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case. In conclusion Mr O’Donnell stressed the fact that the case being presented by the Corporation against the Applicant was technical and complex and warranted legal representation being granted to the Applicant where she could not afford legal representation herself. While the European Convention on Human Rights does not form part of the domestic law of the State, Mr O’Donnell submitted it was illustrative of a position as guaranteed by the Irish Constitution.

33. On behalf of Dublin Corporation Mr Conleth Bradley of Counsel pointed out that the State had not been joined in these proceedings. While the question whether it should been joined was as a matter of justice, it was a matter which should be addressed by the Court. He submitted that the options presented to the Applicant included an application for mandamus against the Legal Aid Board but no such application had been brought. Mr Bradley referred to section 62 of the Housing Act 1966 and indicated that it had its own self contained procedure. Mr Bradley relied upon certain of the dicta of Geoghegan J in the Hamilton case and in particular that if the statutory requirements in the section were complied with that the judge had no discretion in the matter and was obliged to grant a warrant to the Applicant Council. He submitted that what was required to be proved before the Respondent judge were mere formal proofs. Mr Bradley indicated that in this case there was no criminal sanction and that the application before the Respondent judge had to been seen in the particular context involving the duty on a Housing Authority and its obligations as outlined in the judgment of Geoghegan J. Mr Bradley indicated that there were other avenues available to the Applicant including that of an appeal to the Circuit Court against the decision of the Respondent judge. He referred to the fact that the Applicant had not exhausted her remedies and now was represented in the High Court.

34. With regard to the refusal of an adjournment to the Applicant, Mr. Bradley sought to contrast the facts of the instant case to those appearing in the case of

35. Mr. Bradley submitted that the proper Respondent should be the State. He said that the essential question was whether the Respondent judge was entitled as a matter of justice to go ahead on the third occasion. He indicated that the Court was being asked to speculate to as what would have transpired had the Applicant been represented on that occasion. Mr. Bradley submitted that there is no evidence before the Court that the procedures under section 62 would be challenged. It was submitted further by Counsel that the Applicant had the option of seeking a mandamus against the Legal Aid Board, but did not seek to take such an application to the Court. Mr. Bradley submitted that section 62 of the Act of 1966 has a self-contained procedure and in this regard he relied upon the judgment of Geoghegan J in the Hamilton Case . Mr. Bradley relied upon the fact that within two months of the Applicant last appearing before the Respondent judge in the District Court she had obtained a solicitor and Counsel to represent her in the High Court to bring the within proceedings. It was further submitted that the question of civil legal aid and any constitutional right to same cannot be decided without the Legal Aid Board being a party to the proceedings or without there being representation on behalf of the Attorney General. Notwithstanding this submission, no application was made by on or behalf of either the Applicant or Dublin Corporation that the proceedings be stayed or adjourned to enable the Legal Aid Board or the Attorney General to be joined as a party to these proceedings.

36. It was further submitted on behalf of Dublin Corporation that the question of a constitutional right to legal aid did not arise in these proceedings because the Applicant had stated that she was deemed eligible for legal aid and in these circumstances her real complaint appears to be against the particular Law Centre involved and its inability to provide a solicitor. It was further submitted that the gravamen of these Judicial Review proceedings is an attempt by the Applicant to make the Respondent judge accountable for the failings of either the Legal Aid Board and/or the particular Law Centre in question. It was submitted by Counsel that the description of Dublin Corporation as an ‘emanation of the State’ in the context of the Applicant’s grievance is an attempt to either make Dublin Corporation (against whom no relief is sought and whose procedures have not been challenged), or the Respondent judge, in some way accountable for the failings of the Legal Aid Board or its Law Centre. It was submitted by Counsel for Dublin Corporation that this Court should not allow its supervisory jurisdiction to be use as a mechanism to challenge the District Court’s decision when the substantive complaint is against the Legal Aid Board. In these circumstances it was submitted that the exercise of his discretion by the Respondent judge of the District Court could be in no way be deemed a failure to vindicate a constitutional right of the Applicant which alleged constitutional right had never been established in this jurisdiction nor could it be without the Legal Aid Board and the Attorney General being joined to in the proceedings. It was submitted that the Applicant’s arguments in this context are predicated on an hypothesis and speculation of what may have occurred.

37. It was further submitted that the Applicant had a right of appeal to the Circuit Court against the decision of the Respondent judge of the District Court and should have invoked her right to appeal. It was submitted that is both reasonable and constitutional that there be available to a Housing Authority a rapid method of recovering possession of any one dwelling without having to give reasons for so doing. It was submitted that in taking the decision to proceed with the case after two previous adjournments the Respondent judge of the District Court was entitled to take Judicial Notice of a number of matters including:-

38. It was further submitted by counsel for Dublin Corporation that as only one of the tenants had applied for a Judicial Review to quash the decision of the District Court which was directed to both tenants, that is Christopher Byrne and his wife the Applicant Margaret Byrne, that the proceedings were wrongly constituted and that this Court should refuse to grant an order which would have no effect in the circumstances. It was further submitted that as a matter of discretion this Honourable Court should refuse to grant the Applicant the relief which she seeks. In this regard counsel referred to the discretionary nature of the remedy. Furthermore counsel for Dublin Corporation submitted that if the Respondent judge of the District Court did err that any error on his part was an error within jurisdiction and was not amenable to Judicial Review.

39. In reply to the contentions made on behalf of the Applicant that the consequences visited upon the Applicant are severe it was submitted that that the learned judge of the District Court had satisfied the requirements of the law imposed upon him insofar he has afforded the Applicant a reasonable opportunity within which she could obtain legal aid. In this regard Mr. Bradley referred to the judgment of O’Flaherty J in the case Rock -v- Governor of St. Patrick's Institution where at page 8 of the judgment O’Flaherty J said that the duty imposed on a Judicial Office holder was one to afford every reasonable opportunity to the Defendant to make his defence and to equip himself to make his defence. This observation of O’Flaherty J was made in the context of criminal proceedings before the District Court. In the instant case the Respondent judge had adjourned the proceedings twice to afford the Applicant an opportunity to obtain legal representation.

40. In reply to the submissions made by Mr.Bradley for Dublin Corporation, Mr. O’Donnell submitted that even if no application had been made by the Applicant on the last occasion when she appeared before the Respondent judge of the District Court, the obligation imposed upon the Respondent to do justice applied in any event and this necessitated the matter being adjourned to enable her to obtain legal representation. It was submitted that there was implicitly an application for an adjournment made by the Applicant. Mr. O’Donnell conceded that there was no express evidence of a certificate of legal aid having been granted but he referred to the unchallenged evidence that the Applicant was deemed eligible for legal aid. In reliance upon the authority of the King (Harrington) -v- Clare JJ (previously referred to) Mr. O’Donnell submitted that the Applicant had not been given a reasonable opportunity to obtain legal representation in the circumstances. He submitted that the Applicant either had a statutory right to legal aid or alternatively that as a matter of constitutional justice she was entitled to legal aid. He submitted that at the minimum the statutory entitlement was an implementation of the constitutional entitlement to legal aid. Mr. O’Donnell further submitted that no question of an appeal arises and he submitted that this case was essentially on all fours with the decision of the Supreme Court in the State (Healy) -v- Donoghue . In that particular case the Court granted the relief notwithstanding the fact as appeal might have been taken by the Applicants. Mr. O’Donnell relied further upon the judgment of Henchy J in the State (Healy) -v- Donoghue where page 354 of the report Henchy J stated inter alia as follows:-

41. This court has had the benefit of the very detailed submission made by Counsel both for the Applicant and for Dublin Corporation. The issues that arise is this case arise in circumstances of an absence of any clear evidence as to what transpired when the Applicant went to the Legal Aid Board. Nevertheless, in the absence of this evidence and of representation by the Legal Aid Board this Court must address the matter having regard to the nature of the proceedings before the District Court. While the Applicant’s case is that the procedures before the District Court were complex, the case made on behalf of the Corporation is that section 62 entails a self-contained procedure which is straight-forward in nature and does not warrant the granting of legal aid to a Respondent. In considering the nature of the application before the Respondent judge this Court bears in mind in particular the judgment of Geoghegan J in the case of Dublin Corporation -v- Hamilton where Geoghegan J indicated that the procedure before the District Court was one whereby a Local Authority or Housing Authority has a rapid method of recovering possession of any one dwelling without having to give reasons for so doing. Furthermore, in that particular case Geoghegan J indicated that if an abuse occurs in relation to the exercise by a Housing Authority of its obligations that this would be subject to the remedy of Judicial Review but at the same time it is not a matter for the District Judge to consider in a hearing under section 62 of the 1966 Act. In particular this Court must have regard to the views expressed by Geoghegan J when he stated that it would be inconsistent with the purpose of section 62 of the 1966 Act to interpret it in any other way than that formal proofs set out in the section alone are required and the District judge is not entitled to enquire into anything else. In reaching this conclusion Geoghegan J relied in particular upon the judgment of the Supreme Court in the case of the State (O’Rourke) -v- Kelly [1983] IR58. Accordingly the issue that remains is whether having regard to the particular nature of the proceedings in the District Court the Applicant was entitled to the benefit of legal aid and whether, in the circumstances where the Respondent judge proceeded to entertain the application of Dublin Corporation when the Applicant was bereft of legal aid and was not legally represented, he thereby exceeded his jurisdiction. It is to be noted that the proceedings before the District Court were in no way altered in their nature by reference to the fact that if successful the Applicant would not be entitled to be re-housed by Dublin Corporation, unless this Court were to hold that the District Court was entitled to consider the background to the Application for the warrant in the context of the application before it brought by Dublin Corporation. Notwithstanding the consequences of a decision made by the District Court in an application for a warrant under section 62, I am of the opinion that the jurisdiction of the District Court is not enlarged if the consequences are greater for one tenant as opposed to another. Accordingly, I am of the view that the decision of Geoghegan J in the Hamilton case is a correct statement of the jurisdiction of the District Court in an application such as that made by Dublin Corporation seeking possession of the Applicant’s premises. While Mr O’Donnell has relied heavily on the decision of the High Court delivered by Lardner J in the case of Stevenson -v- Landy the essential issue in these proceedings is whether the requirements of constitutional justice are such that the Applicant should have been afforded legal aid before being required to submit to the application of Dublin Corporation before the Respondent judge. I am of the view that having regard to the restricted jurisdiction of the District Court in an application under section 62 of the Housing Act 1966 that the procedures involved are straightforward and relatively simple and involve certain straightforward proofs to be satisfied. Were the circumstances otherwise and were the District Court entitled in the exercise of its jurisdiction to enquire into the reasons for the service for the Notice to Quit then undoubtedly a different situation would pertain and a situation akin to that pertaining in the case Stevenson -v- Landy would apply whereby the requirements of constitutional justice would ordain that legal aid be granted. Essentially I come to the conclusion, contrary to the submission made by Mr. O’Donnell, that the case being presented by Dublin Corporation against the Applicant was technical and complex and warranted legal representation being granted to her, that a true examination of the facts reveals that the case being presented to the District Court was not complex and while the term ‘technical’ has been used it simply relates to the procedures to be followed which were straightforward in themselves. This involved the proof of the tenancy agreement which would have been furnished to the Applicant previously and secondly the service upon her of a Notice to Quit. These matters are proved by the production of the letting agreement and the Notice to Quit to the District Court judge.

42. Dublin Corporation may correctly be described as an emanation of the State, and while the considerations which influenced the judgment of Gannon J in the case of C -v- Legal Aid Board [1991] 2 I.R. 43 do not apply to the proceedings taken by Dublin Corporation against the Applicant insofar as it is an emanation of the State and the proceedings before the High Court in the case of C -v- Legal Aid Board were nullity proceedings in which neither the State nor the emanation of the State was a party, it must be stated, however, that the mere fact that the State or an emanation of the State is a party cannot of itself be such as to render the proceedings such that the party against whom the proceedings are brought is naturally entitled to legal aid. Furthermore, while the uncontroverted evidence before this Court is that the Applicant was deemed eligible for legal aid it appears that this is referable to means criteria for legal aid. No certificate has been put in evidence by the Applicant and accordingly it appears that no stage has been reached whereby the Legal Aid Board has granted her a certificate of legal aid. Accordingly, I must conclude that the Applicant has not shown to the satisfaction of this Court that the Respondent judge exceeded his jurisdiction in proceeding with the application of Dublin Corporation and granting a warrant of possession against the Applicant, in circumstances where the Applicant did not have legal aid and accordingly I must refuse this Application for Judicial Review.

43. For completeness sake it is appropriate to mention that this Court places no reliance upon the fact that the Applicant was represented in these proceedings in refusing the relief sought by her. Furthermore while Counsel for Dublin Corporation has referred to the right of appeal of the Applicant, this Court is of opinion that were the Applicant entitled to legal aid, that the existence of a right of a right of appeal would in no way represent an adequate ground of opposition to an application for Judicial Review if the District Court acted in excess of its jurisdiction.