Foley & anor v Dublin City Council

AN CHÚIRT ACHOMHAIRC THE COURT OF APPEAL APPROVED – NO REDACTION NEEDED Court of Appeal Record Number: 2025 221 High Court Record Number: 2024 653 JR Neutral Citation Number: [2026] IECA 51 Meenan J. Hyland J. Collins J. BETWEEN/ EMMANUEL FOLEY AND JEANETTE AFI ABONI APPLICANTS/APPELLANTS - AND - DUBLIN CITY COUNCIL RESPONDENT JUDGMENT of Mr. Justice Anthony M. Collins delivered on the 30th day of March 2026 -1- I. Issue for determination 1. This appeal against the ex tempore judgment and order of the High Court (O’Regan J.) of 24 July 2025, by which it declined to extend the time within which the appellants could seek orders of certiorari, mandamus and declarations by way of judicial review against the respondent, engages the interpretation and the application of R.S.C. O. 84, r. 21, which governs the time within which such applications must be commenced. 2. R.S.C. O. 84, r. 21(1) requires that an application for leave to apply for judicial review be made within three months from the date when grounds for the application first arose. By R.S.C. O. 84, r. 21(3): Notwithstanding sub-rule (1), the Court may, on an application for that purpose, extend the period within which an application for leave to apply for judicial review may be made, but the Court shall only extend such period if it is satisfied that: (a) there is good and sufficient reason for doing so, and (b) the circumstances that resulted in the failure to make the application for leave within the period mentioned in sub-rule (1) either: (i) were outside the control of, or (ii) could not reasonably have been anticipated by the applicant for such extension. 3. R.S.C. O. 84, r. 21(5) states that an application for an extension under sub-rule (3) shall be grounded upon an affidavit sworn by or on behalf of the applicant which shall set out the reasons for the applicant’s failure to make the application for leave within the period -2- prescribed by sub-rule (1) and shall verify any facts relied on in support of those reasons. 4. In Arthropharm (Europe) Ltd. v. Health Products Regulatory Authority [2022] IECA 109 this Court reflected upon the interpretation and application of R.S.C. O. 84, r. 21. After a review of relevant case-law, notably Veolia Water UK plc v. Fingal Co. Co. (No. 1) [2007] 1 I.R. 690, Murray J. concluded, at paras. 47 to 68 of his judgment that, for the purposes of R.S.C. O. 84, r. 21(1), time runs from when a formal consequence adverse to the applicant’s interests comes into being, e.g. when a decision that has legal effects for that person has been taken. At paras. 84 to 86 of his judgment, Murray J. described the amendment of the Rules of the Superior Courts introduced by the Rules of the Superior Courts (Judicial Review) 2011 (S.I. No. 691 of 2011) and the case-law that considered it. At para. 87, he set out nine propositions that he considered were ‘clear’ as regards extensions of time to bring applications for judicial review, amongst them (viii): …, the rule clearly positions an inquiry as to whether the applicant had within its ‘control’ the effluxion of time: it is clear from the rule that in addition to being satisfied that good and sufficient reasons exist for an extension of time, the court must be satisfied as a matter of fact that the circumstances which resulted in the delay were outside the control of the applicant (per Baker J. Irish Skydiving Club Ltd. v. Kilkenny County Council at para. 9). Where a delay arises from circumstances which were within the control of the applicant, the court may not extend (id. at para. 10). 5. It follows from the text of R.S.C. O. 84, r. 21(3) and the case- law referenced in the previous paragraph that the requirement that an application for leave to apply for judicial review be made within three -3- months from the date when grounds for the application first arose is subject to the possibility that the court hearing the matter may extend the time to make that application. The High Court can do so only where it is satisfied, on the basis of affidavit evidence, that the reasons for the failure to make the application within the period in R.S.C. O. 84, r. 21(1) explain and objectively justify the delay in bringing the application and that those circumstances were beyond the applicant’s control or s/he could not reasonably have anticipated them. Once the High Court is so satisfied it may exercise its discretion as to whether to extend time and in so deciding takes all relevant circumstances into account. II. Factual Background 6. The Housing (Miscellaneous Provisions) Act 2014, as amended, and the Housing Assistance Payment Regulations 2014 (S.I. No 407 of 2014) made thereunder, as amended, provide for the payment by a housing authority of rent for a dwelling to a landlord on behalf of a qualified household in accordance with Part 4 of that Act (the Housing Assistance Payment or ‘HAP’). 7. On 28 September 2020, the appellants and a landlord completed a HAP application form in relation to a dwelling that the former wished to rent from the latter. Section 2.6 of the tenants’, and section 7.9 of the landlord’s, parts of the HAP application form that they completed respectively contained a space in which to insert details of the monthly rent for the property. Beside that space is a statement that “Rent excludes bin (refuse) charges, management fees, utility bills or car-parking charges”. Both parts of the HAP application form require the signatories to declare that the information and -4- details they have given are true and correct and that it is contrary to law to provide false information. 8. The HAP application form the parties completed represented that €1,940.50 was to be paid for the rent of the dwelling each month. On the basis of the information that the appellants and the landlord presented to the respondent, the latter approved the appellants for HAP at that figure, comprised of €1,300 as the maximum HAP limit for the appellants’ family and a maximum discretionary increase of 50% of €650. The appellants were required to make a weekly differential rent contribution of €53.42 to Fingal County Council. 9. On or about 8 October 2020 the appellants and the landlord entered into a letting agreement in respect of the dwelling, in which the following appears under the heading ‘RENT’: €1555.50 per calendar month €300 car parking €85 Service charge €1,940.50 Total 10. The appellants received a Notice of Rent Review from the landlord dated 18 November 2021, as a consequence of which a new, higher rent of €2,018 was fixed in respect of the dwelling with effect from on or about the end of that calendar year. The first appellant avers that he informed the respondent of that change to which he received no response. On 13 May 2023, the appellants applied to the Residential Tenancies Board to challenge the validity of the Notice of Rent Review. By decision of 11 January 2024, communicated by letter dated 30 January 2024, the Residential Tenancies Board determined that the Notice of Rent Review was invalid. It ordered -5- that the landlord pay the appellants €1,490.97 for overpayment of rent and charges in respect of the tenancy. 11. In spring 2023, the appellants corresponded with the respondent with a view to obtaining an increase in the amount of HAP commensurate with the increase in the monthly rent consequent upon the rent review. In that context the respondent received, for the first time, a copy of the lease agreement. The respondent took the view that the appellants and the landlord had misrepresented the level of rent for the purposes of the HAP application form. On 14 April 2023, the appellants received an e-mail from the landlord’s agent. Attached to it was an e-mail that the latter had received from the respondent on the previous day, which stated that (emphasis in the original): Please note that the Notice of Rent review was submitted to Limerick Shared Services. Please note that the new rent payment will be €1,644.00 monthly as we do not pay for parking & service charge. We have paid €1940.50 monthly since this tenancy has started on 01/11/2021 and the monthly rent payment then should only have been €1555.50. Due to this previous overpayment of rent this will have to be recouped in respect of this tenancy. Limerick Shared Services will deduct this overpayment from further payments for this tenancy.” 12. The landlord’s e-mail further informed the appellants that they were liable to pay a monthly rent of €2,018, less HAP of €1,644, leaving a sum of €374 for the appellants to pay the landlord every month. Immediately thereafter the appellants responded with a request that the landlord cancel their use of the car parking space. The landlord declined to do so on the ground that the property had been advertised and rented out inclusive of the use of that space. -6- 13. On 24 April 2023, the respondent informed the appellants by e- mail that their weekly differential rent contribution was €87.61 and “then you pay for the cost of the parking and service charges to your landlord every month”. On 27 April 2023, the first appellant wrote to the landlord’s agent to inform it of their inability to pay the parking and service charges. Paragraphs 28 and 29 of the first appellant’s affidavit of 10 May 2024 represent that, from 1 May 2023, the amount of HAP paid to the landlord was reduced to €1,640. On 21 June and 22 July 2023, the appellants sent letters to Fingal Co. Co. which described the car parking issue and their inability to pay for use of that space, to which they received no reply. 14. On 7 February 2024, the appellants engaged S. Bartels & Co., Solicitors. On 12 February 2024, that firm wrote to the respondent seeking details of the legal basis for what it described as “a change to their HAP payment.” Correspondence thereafter ensued between the appellants’ solicitors and the respondent, which laid out each side’s arguments in support of their respective positions. Ultimately, on 17 April 2024, the appellants’ solicitors addressed a letter to the respondent and to the Minister for Housing, Local Government and Heritage, which stated that, in the absence of confirmation within five working days that the respondent would commit to paying the full HAP for which their clients qualified and the balance outstanding to the landlord, they would have no option other than to issue judicial review proceedings against the respondent. 15. The respondent’s Law Agent’s reply to the appellants’ solicitors by letter of 14 June 2024 did not contain the confirmation sought. On 17 June 2024, the High Court (Hyland J.) granted the appellants -7- leave to apply for various reliefs by way of judicial review, the third of which seeks: An Order of Certiorari of the decision first taken in or about April 2023 and refined and revised by emails from Denis O’Connor sent on the 20th of February 2024 and the 19th of March 2024 and is repeated every month to the effect that the Respondent refuses on an ongoing monthly basis to pay any HAP support beyond the figure of €1644 per month, culminating in a letter dated the 14th June 2024 from Yvonne Kelly, Law Agent of the Respondent to the Applicant’s Solicitor to the effect that car parking and management fees (amongst others) would not be included for Housing Assistance Payments. 16. On 23 July 2024, the respondent caused to have filed a Statement of Opposition, para. 28 of which states that: By way of preliminary objection, the Applicants’ challenge to the action/decision of the Council in or around April 2023 is out of time and has not been made within the three-month period provided for by Order 84 Rule 21 of the Rules of the Superior Courts (“RSC”). In this regard, the Council rectified the level of HAP in April 2023 upon discovery of the Applicants’ and landlord’s misstatement/misrepresentation as to the quantum/level of rent (excluding additional charges). The Applicants have been aware of this correction and the basis for same since in or around April 2023, but have failed to challenge same within the prescribed three- month period. Insofar as the Applicants have sought an extension of time…, no factual basis has been provided for seeking and/or justifying same and it is denied that the Applicants are entitled to such an extension in the circumstances. III. The High Court Judgment 17. The application for judicial review came on for hearing before O’Regan J. on 24 July 2025. The transcript shows that she had read the papers in advance and had identified two issues: whether the application had been brought in time for the purposes of R.S.C. O. -8- 84, r. 21(1) and the apparent absence of any application to extend time for that purpose. Having heard counsel for the parties, the High Court rose at 12h50 and announced it would deliver an ex tempore ruling at 13h50 as to when time had commenced to run for the purposes of R.S.C. O. 84, r. 21(1), whether an extension of time to bring the application was required and, if so, whether that extension ought to be granted. 18. Addressing the first issue, the High Court observed that the appellants claimed that the decision they sought to challenge was completed by correspondence received in March or in June 2024, as a consequence of which the application had been brought in time. Citing para. 68 of the judgment of Murray J. in Arthropharm, the High Court took the view that the decision to reduce the amount of HAP paid to the landlord had formal adverse consequences for the appellants from 1 May 2023. The time to launch the proceedings thus commenced on that date. The appellants could not wait nine months thereafter to make inquiries as to the existence of an appeal, thereby extending the time period contemplated in R.S.C. O. 84, r. 21(1). The High Court could, if it was satisfied there was an evidential basis for it to do so, nevertheless grant the appellants an extension of time to bring their application. 19. Referring to para. 87 of the judgment of Murray J. in Arthropharm, the High Court understood it to impose an obligation on the appellants to identify the reasons why they had not brought their application in time and to explain that delay. In order to do so the appellants had to put the facts that supported an application to extend time on affidavit. Notwithstanding what it described as a -9- critical lapse in the information before it as to the reasons why time ought to be extended, the High Court referenced the various efforts the appellants had made in an effort to address the reduction of HAP. In oral submissions made on their behalf, counsel also referred to the appellants’ impecuniosity as a reason why they had not commenced proceedings sooner. The High Court took the view that not only was that assertion not supported by any affidavit evidence, but there was also no explanation for the change in the appellants’ material circumstances between May 2023 and February 2024. 20. The High Court further observed that the appellants had adduced no evidence to show that the failure to make the judicial review application in time was as a result of matters beyond their control. Where there was no evidence before the High Court as would explain and objectively justify the delay and show that the explanation for it was beyond the appellants’ control, the High Court had doubts as to the necessity to embark upon a balancing exercise. Had she been required to address the point, the learned trial judge observed that the appellants’ reliance upon Art. 8 of the European Convention on Human Rights was misconceived since there was no evidence to show that the appellants’ family unit would dissolve if it were required to leave the dwelling. The High Court added that it took no account of any prejudice the grant of an extension of time might have caused the respondent. The High Court thereby refused the application to extend time to make the application for judicial review. - 10 - IV. Determination of the Appeal 21. Two questions arise for decision in this appeal. From when did time commence to run against the appellants for the purposes of R.S.C. O. 84, r. 21(1)? If the application was made out of time by reference to that yardstick, had the appellants adduced evidence to explain and to justify that delay and to show that those reasons were beyond their control or could not have reasonably been anticipated? 22. As explained at paras. 4 and 5, above, time begins to run against a party for the purposes of R.S.C. O. 84, r. 21(1) when a formal consequence adverse to his/her interests comes into being. Time runs for that purpose even where the person affected has no notice of that decision or measure, although the lack of that knowledge may justify any consequential delay in bringing on proceedings. The uncontradicted evidence before this Court is that the decision, the validity of which the appellants seek to impugn in this application, took effect at the very latest on 1 May 2023 and that, moreover, they knew of its existence shortly before it took effect. Time to challenge the validity of the impugned decision thus began to run from 1 May 2023. Arguments to the effect that time commenced to run from a later date, for instance from when the appellants were informed of the existence of an appeal, or when it is alleged the essential contours of the decision were first outlined to them, thus have no basis in fact or in law. As a consequence of the appellants’ persistent reluctance, up to the hearing of this appeal, to acknowledge the state of the law, they did not explain the reasons why they had not commenced these proceedings in time and/or the reasons for that delay. - 11 - 23. Given that para. 28 of the Statement of Opposition filed on 23 July 2024, reproduced at para. 16, above, gave notice of the respondent’s preliminary objection on that very point, one might have anticipated that the appellants would have caused to have filed an affidavit to explain the course of events between May 2023 and June 2024. That was not done. On a view of such material as has been put before the Court that is most favourable to the appellants, it seems they made unsuccessful efforts to address the issue in the two letters addressed to Fingal Co. Co. on 21 June and 22 July 2023 stating their inability to pay the charge for car parking. The next step they are recorded as having taken is on 7 February 2024, when they instructed the solicitor on record for them in these proceedings. The appellants thus do not engage with what transpired over a period of approximately six months, twice the time that R.S.C. O. 84, r. 21(1) allows for the commencement of judicial review proceedings. The existence of correspondence between the appellants’ solicitors and the respondent during the period between February and June 2024 does not, in itself, explain why, in circumstances where there had already been an unexplained delay of six months, a further four months were required to bring on this application. The absence of any explanation for those lapses is all the more difficult to comprehend in circumstances where, in or around the same time, the appellants prosecuted a successful challenge to the Notice of Rent Review in proceedings against the landlord before the Residential Tenancies Board. Since it appears that the solicitor on record for the appellants is prepared to act on their behalf on a “no fee no foal” or pro bono basis, it is also unclear if the appellants asserted impecuniosity was in fact an obstacle to their moving this application - 12 - before the High Court, casting further doubt upon what were in fact the causes of the undoubted delay in so doing. 24. As a result of this evidential vacuum, the High Court was placed in a position where it could not exercise its discretion to grant an extension of time to bring these proceedings. The absence of any explanation for the delay also meant that the High Court could not determine whether the reasons for that delay were outside of the appellants’ control or they could not have reasonably anticipated, matters that the appellants must prove in order to obtain an extension of time. Without receiving that evidence, the High Court could not proceed to consider whether to extend time in light of all considerations relevant to that issue. 25. By Notice of Motion of 10 November 2025, the appellants seek to adduce evidence at the hearing of this appeal in the form of affidavits made by their solicitor and by the first named appellant to set out the reasons and context as to why, prior to February 2024, they had not engaged a solicitor to assist with their dispute with the respondent. 26. In Murphy v. Minister for Defence [1991] 2 I.R. 161, 164 per Finlay C.J., the Supreme Court identified the following cumulative criteria that govern applications for liberty to adduce fresh evidence on appeal: 1. The evidence sought to be adduced must have been in existence at the time of the trial and must have been such that it could not have been obtained with reasonable diligence for use at the trial; 2. The evidence must be such that if given it would probably have an important influence on the result of the case, though it need not be decisive; - 13 - 3. The evidence must be such as is presumably to be believed or, in other words, it must be apparently credible, though it need not be incontrovertible. 27. The evidence the appellants seek to adduce could have been readily obtained prior to the hearing in the High Court. It follows that this application manifestly fails to meet the first leg of the Murphy test. The explanation tendered on the appellants’ behalf, to the effect that it is produced to address a wholly unanticipated and unforeseen want in the proofs before the High Court, does not satisfy the reasonable diligence criterion in Murphy. Nor has that explanation any intrinsic merit in circumstances where the Statement of Opposition squarely raised the issue of the appellants’ actual and evidential compliance with R.S.C. O. 84, r. 21(1). 28. In any event, I observe that the evidence the appellants seek to adduce consists of bare assertions and gives no detail as to their financial circumstances. That raises an issue as to whether that evidence also fails to satisfy the second leg of the Murphy test. Addressing the issue of affording an extension of time within which to bring judicial review proceedings in this Court, at para. 37 of his judgment in DPP v. Kravtsov [2025] IECA 28, Edwards J. observed “…there has not been adequate or sufficient engagement by the appellant with the dual requirements (i) to provide good and sufficient reasons why the Court should now extend time, and (ii) to justify, supported by evidence, the failure to initiate judicial review proceedings in time either on the basis that the circumstances that resulted in such failure were outside the control of the appellant or could not reasonably have been anticipated by her.” Given my finding that the evidence sought to be adduced fails to comply with - 14 - the first leg of the Murphy test, it is unnecessary to decide if it also fails to satisfy the second leg of that test. 29. For these reasons, the motion to adduce evidence at the hearing of this appeal stands dismissed. 30. Finally, insofar as Part 5 of the written submissions filed on behalf of the appellants criticises the conduct of the hearing by the learned trial judge, the transcripts of that proceeding disclose that such criticisms are wholly without foundation. V. Conclusion 31. For the reasons set out at Part IV, above, I would dismiss the appeal and affirm the judgment and the Order of the High Court. 32. The default position under s. 169(1) of the Legal Services Regulation Act 2015 is that a party that has been entirely successful in proceedings is entitled to an award of costs against the unsuccessful party unless the court hearing the matter orders otherwise. Whilst the respondent has been entirely successful in defending these proceedings, I note that it sought no costs order against the appellants in the High Court. Should the respondent wish to seek such an order for the costs of this appeal, it may deliver a written submission of not more than 1,000 words within fourteen days of the delivery of this judgment, in the absence of which I propose that the Court make no order in that regard. Should the respondent ask the Court to make a costs order in its favour, the appellants will have a period of fourteen days from the delivery of - 15 - the respondent’s submissions in which to respond by the lodgment and service of a reply of no greater length. 33. Since this judgment is delivered electronically, I am authorised by Meenan and Hyland JJ. to state that they agree with it and with the orders proposed therein. Appearances: For the Appellants: Michael C. O’Connor SC and Miceál O’Connor, instructed by S. Bartels & Co., Solicitors For the Respondent: Stephen Dodd SC and Christopher Hughes, instructed by the Law Agent, Dublin City Council