Tenancy disputes appeal system ‘defies all logic’, judge says

The fact that a short High Court hearing of a landlord's appeal over a €910 award by the Residential Tenancies Board (RTB) to a tenant could cost thousands of euro in legal costs "defies all logic", a judge has said.

Mr Justice Michael Twomey said the Residential Tenancies Act 2004, which provides for appeals against decisions of the RTB to the High Court on a point of law, cannot have been drafted with the public in mind, although it benefits lawyers.

He said this cannot be a “proper use of taxpayers funds” as the RTB is expending significant resources defending appeals in the High Court where litigation is “so expensive”.

The High Court is the preserve of the “very rich”, who can afford to pay legal costs should they lose, or the “very poor”, who do not care if they lose as they have no funds to pay costs, he said.

High Court costs are likely to discourage tenants and landlords from appealing RTB decisions, he added. It could not be in a tenant’s or landlord’s interest the “most expensive” court, rather than the cheapest, was chosen as the forum for appeals.

This epitomised some of the flaws in the civil justice system, he said, noting the president of the High Court has said only “paupers and millionaires” can currently litigate in the High Court.

Jurisdiction

He believed the appropriate forum for RTB appeals is the District Court, where the legal costs would he commensurate with the awards at issue, rather than the High Court whose jurisdiction is a minimum €75,000.

He made the comments when dismissing an appeal by Jerrard Nestor, representing himself, against a determination of the RTB in favour of a tenant.

The man, a notice party to the case, was asked to leave Mr Nestor's premises at College Road, Galway, in his first week there due to failure to also pay four weeks rent in advance.

The RTB decided Mr Nestor unlawfully terminated a tenancy agreement for the premises. It ordered him to return to the man his deposit of €400, less €90 for unpaid rent, plus €600 damages over unlawful termination of the tenancy agreement and wrongful withholding of the deposit.

Mr Nestor initially appealed a decision of an RTB adjudicator to the board itself and, after losing there, appealed to the High Court. Mr Justice Twomey stressed the appeal only concerned points of law, not the merits of the RTB decision.

He dismissed arguments by Mr Nestor that the College Road premises was Mr Nestor’s dwelling and the RTB had no jurisdiction in the matter.

Not raised

While that appeared a valid argument on the facts given the layout of the dwelling, the point was not raised before the adjudicator and could not now be raised on appeal, he said.

If new grounds could be raised at appeal stage, that would mean considerable costs to the taxpayer, he said.

He also rejected Mr Nestor’s claim that, because of failure of the notice party to pay four weeks rent in advance, he had no actual tenancy agreement.

This was a “plausible argument” and, if the court was hearing an appeal on the merits, it might find there was no tenancy agreement, he said.

However, it was not a point of law and had already been raised before the RTB, he said.

The court’s only role was to decide whether there was any “evidence” on which the Board could have found there was a tenancy agreement and there was such evidence including payment of a deposit and the signing of an agreement for a six month tenancy.