IEHC 73 — IEHC 73 — High Court

THE HIGH COURT

JUDICIAL REVIEW

RECORD NUMBER 2024/1345 JR

[2026] IEHC 73

IN THE MATTER OF

THE HOUSING (MISCELLANEOUS PROVISIONS) ACT 2009

between

SM

and

KM

(A MINOR SUING BE HER MOTHER AND NEXT FRIEND)

APPLICANTS

and

DUBLIN CITY COUNCIL

RESPONDENT

Judgment of Mr Justice Cian Ferriter delivered 13 February 2026

Introduction

1. This judgment deals with the applicants’ application for the costs of these judicial proceedings which both parties accept have become moot since the proceedings were instituted in November 2024.

Background

2. The background to the matter is as follows.

1 3. On 11 November 2024, the applicants (a mother and minor daughter) were granted leave to apply by way of judicial review for an order quashing the decision of the respondent (“the Council”) of 2 August 2024 refusing to disregard the order of priority given to a household under an allocation scheme where the household is being provided with social housing support pursuant to section 22(7) of the Housing (Miscellaneous Provisions) Act 2009 (“the 2009 Act”). In essence, the applicants were seeking to quash a decision of the Council refusing to give them priority on the Council’s housing list.

4. The applicants had been on the Council’s ordinary social housing list since June 2018. The first named applicant (for ease in this judgment, “the applicant”) averred in her grounding affidavit in the leave application to the fact that she and her daughter (the second named applicant) had been subject to physical and psychological domestic violence by her former partner and that her daughter had made significant allegations of sexual abuse against that man. The applicant averred that she could not understand why the Council considered that she remained safe in the house she and her daughter were living in (which had formerly been owned with her ex partner) or why her experiences of domestic violence were not sufficiently exceptional. She stated that she simply wanted her daughter and herself to live free from danger.

5. The applicant had applied to the Council under section 22 of the 2009 Act for priority on the social housing list in 2019 on the basis of Exceptional Social Grounds. That application was refused. She applied for priority again in September 2023 when her former partner’s behaviour continued to worsen. This was refused on 13 December 2023 and a review was then sought of that decision. The outcome of that review, dated 26 March 2024, was to refuse the review. On 3 April 2024, the applicant’s solicitors requested that the review be revisited and on 17 April 2024 the Council maintained its decision on review.

6. On 2 August 2024, the Council issued a further decision, being the decision challenged in these proceedings, maintaining its refusal to place the applicant on the priority list. The officer dealing with the application took the view that she was unable to make a recommendation for priority. She referenced in her decision letter the fact 2 that the applicant had told a senior social worker who assessed her application in September 2023 that she was not nervous about remaining close to where her ex partner lived as she had an active protection order in place. (The applicant takes fundamental issue with this version of events). The officer said she spoke to the gardai and was informed that there were no incidents since 2020 of a breach of the safety order and was of the view that the appropriate legal remedy of a safety order was effective in the case. She referenced the fact that it was not uncommon for a family to continue to reside in the home and an alleged perpetrator of domestic violence to move out where there is a safety order in place and that therefore this circumstance would not be considered exceptional or significantly more urgent than other applicants under the exceptional social grounds scheme. Again, the applicant takes issue with this characterisation of events.

7. The applicant’s solicitors sent further correspondence in September and October 2024 in essence inviting the Council to revisit its decision. On 22 October 2024, the applicant’s solicitor sent a pre-action letter to the Council.

8. The applicant and her daughter were provided with short term emergency accommodation by Sonas from 26 September 2024.

9. Following the institution of the proceedings by the grant of leave to apply for judicial review on 11 November 2024, the Council wrote to the applicant’s solicitors on 9 December 2024. That letter re-iterated the basis of the Council's position that the applicants were not entitled to priority on the housing list. The letter pointed out that the applicants had been on the social housing list since June 2018 and were currently no. 114 on that list. The letter stated that by reason of the ordinary operation of the list the applicants were within the offer zone for “choice based lettings” not as a result of exceptional circumstances but because of their length of time on the list. The letter stated that in the expected course a property would become available early in 2025 within the applicant’s chosen area for which she would qualify.

10. The letter proposed an adjournment of the matter before the court on 10 December 2024 to facilitate engagement on the proposed choice based letting issue “with a view to resolving the matter”. 3 11. This letter was replied to by the applicant’s solicitors on 18 December 2024 in which it was noted that accommodation had been offered to the applicants for the purposes of resolving the proceedings. This characterisation of the Council’s letter of 9 December 2024 was rejected in a letter from the Council of 8 January 2025. That letter reiterated the Council's position that the applicant's request for housing was being dealt with on the basis of her position on the ordinary social housing list and not otherwise. The letter also appeared to contain additional reasons for refusing the applicant’s application for priority which had not been contained within the decision of 2 August 2024. Those additional reasons included the fact that the applicant had a permanent job. The letter also stated that the Council was unaware of any evidence that the applicant had experienced any domestic violence since 2019 when an appropriate protection order was procured from the District Court. The applicant was particularly exercised about this assertion in light of the material and evidence she had previously put before the Council and before the court by way of grounding affidavit in the proceedings.

12. On 11 March 2025 the applicants issued an application to amend their statement of grounds to challenge the additional reasons set out in the letter of 8 January 2025. The court granted permission to amend the statement of grounds on 25 March 2025.

13. The provision of the choice based letting was delayed by a number of months, the Council says due to circumstances outside its control. This led to the proceedings being adjourned some 11 times until the promised accommodation materialised.

14. The applicant was formally offered housing on 11 April 2025 which was accepted on that date.

15. Both sides accept that the effect of the Council's offer of property pursuant to the ordinary housing list and the applicant’s acceptance of same is to render the proceedings moot.

Legal principles

4 16. The relevant legal principles in relation to the determination of costs in mootness situations are not in dispute and are set out in the judgment of Murray J. in the Court of Appeal in Hughes v Revenue Commissioners [2023] 3 IR 393 (“Hughes”). There is a dispute as to the proper application of those principles to the facts.

17. As Murray J noted in Hughes the jurisprudence has evolved in recent years from a position where the focus in resolving costs applications in mootness situations was on the reasonableness of the applicant’s actions in instituting or maintaining the proceedings up to the point of mootness, to a position where the focus was on the cause of the mootness. (para 29)

18. The relevant principles are set out at paragraphs 31 to 33 of his judgment as follows:

“31. First, where the mootness arises as a result of an event that is entirely independent of the actions of the parties to the proceedings, the fairest outcome will generally be that the parties should bear the costs themselves. Neither is responsible for the mootness, and neither should have to pay for costs rendered unnecessary by an event for which they bear no responsibility.

32.Second, however, where the mootness arises because of the actions of one of the parties alone and where those actions (a) can be said to follow from the fact of the proceedings so that but for the proceedings they would not have been undertaken, or (b) are properly characterised as ‘unilateral’ or – perhaps – (c) are such that they could reasonably have been taken before the proceedings, or before all of the costs ultimately incurred in the proceedings were suffered, the costs should often be borne by the party whose actions have resulted in the case becoming moot. In the first of these situations, it can be fairly said that there was an event which costs can and should follow in accordance with conventional principle. In the second, it will frequently be proper that the party who is responsible for the unilateral action which results in the mootness should bear the costs. In the third, it might be said that where a party who could reasonably have acted so as to prevent the other party from incurring costs failed to do so, it is proper that they should have to discharge those costs. 5 33.The third general proposition addresses the particular position of statutory bodies. Agencies with obligations in public law cannot be expected to suspend the discharge of their statutory functions simply because there are extant legal proceedings relating to the prior exercise of their powers. They must be free to continue to exercise those powers in accordance with their legal obligations. At the same time, it would be wrong if under the guise of exercising their powers in the normal way, the statutory authority both effectively conceded an extant claim, and avoided the legal costs that would otherwise attend such a concession. The cases strike a balance between these two considerations by suggesting that where the mootness arises because a statutory body makes a new decision in the exercise of its legal powers, the court should look at the circumstances giving rise to that new decision in order to decide whether it constitutes a ‘unilateral act’ for these purposes. If the new decision is caused by a change in the relevant circumstances occurring between the time of the first decision, and of the second, the Court might not treat the new decision as a ‘unilateral act’ and may accordingly make no order as to costs. If, however, there has been no such change in circumstances so that the body has simply changed its mind, costs may be awarded against it. If the respondent wishes to contend that there has been a change in circumstances it is a matter for it to place before the court sufficient evidence to allow the Court to assess whether and if so to what extent it can fairly be said that this is so. This requires the respondent to establish that there was a change in the underlying circumstances sufficient to justify, in whole or in part, it being appropriate to characterise the proceedings as having become moot by reason of a change in external circumstances. In conducting this analysis, the Court should not embark upon a determination of the merits of the underlying case.”

19. Murray J stresses, at para 34, that “each of these three propositions present a general approach rather than a set of fixed, rigid rules. The starting point is that the court has an overriding discretion in relation to the awarding of costs” and the propositions he summarises from the case law are intended to guide the exercise of that discretion.

6 20. He helpfully suggested the following four questions in approaching the question of where an appropriate costs order lay in mootness cases based on the principles he summarised: “ (i) What was the specific event that resulted in the action becoming moot? (ii) Was that event the result of an occurrence outside the control of either

party? (iii) Was that event caused by the unilateral actions of one of the parties?

(iv) If the answer to (iii) is in the affirmative, has the person responsible for the

mootness established that their actions were not undertaken in response to the proceedings?”

Evidence and Submissions on the Costs question

21. Affidavits were sworn by both sides in respect of the costs question, which I shall refer to where appropriate below, and I also received helpful written and oral submissions from counsel on both sides.

Discussion

Applicant successful on “event”?

22. The applicant contends that she has been wholly successful in relation to the event under section 169 of the Legal Services Regulation Act 2015 such that she should be entitled to her full costs.

23. She says that the clear purpose of the proceedings was to secure housing from the Council and that ultimately shortly after the institution of the proceedings she succeeded in getting such housing. Whatever about the legal characterisation of the basis of the route to housing ultimately offered to her by the Council she says as a matter of fact she was successful on the core event of whether or not she should get housing from the Council.

24. I am not persuaded by this submission. The event for the purposes of section 169 is inevitably determined by the issues raised and relief sought in the proceedings. In her 7 statement of grounds, the applicant was clearly challenging the failure of the Council to afford her priority status under section 22(7) of the 2009 Act. If the Council had subsequent to the institution of the proceedings, and in response to the institution of the proceedings, determined that it had changed its mind and she was entitled to be put on the priority list, she might then be in a position to contend that she was successful on the event (in accordance with the analysis of Murray J. set out at para 32 of Hughes quoted above).

25. However, the Council did not reconsider its decision as regards to the applicant being put on the priority list and continued in its correspondence to stand over the validity of its decision in that regard.

26. I do not think that I can hold that the applicant was successful on the event for the purposes of section 169 in the circumstances.

27. Rather, it seems to me that I must proceed to apply the principles established in the case law on costs in mootness cases as summarised in Hughes.

Mootness caused by Council’s unilateral actions?

28. The applicant contends that, as an alternative to her section 169 arguments, the mootness was caused by a unilateral act of the Council in offering her housing. She further contends that a consideration of the circumstances as a whole both prior to the institution of the proceedings and during the currency of the proceedings, makes clear that the offer of housing was not in the ordinary course of business but that the Council instead timed its offer of housing so as to render the proceedings moot.

29. I accept that it can reasonably be said that the proceedings became moot as a result of the Council's actions in offering the applicant a house by virtue of her place near the top of the ordinary waiting list. The real question that arises is whether on the evidence before me the Council has discharged the onus of demonstrating that (in the words of Murray J in Hughes at para 39(iv)) the actions of the Council which resulted in the applicant being offered housing were not undertaken in response to the proceedings. 8 30. In this regard, an affidavit was sworn by Mary Hayes a senior official in the Council who is a director of the Dublin regional homeless executive of the Council. In that affidavit she averred that in its letter of 9 December 2024 the Council noted that the applicants had been on the social housing list since 27 June 2018 and their current position at that time was no. 114. The Council advised that by ordinary operation of the housing list the applicants were within the offer zone for choice based lettings not as a result of their exceptional circumstances but because of the length of time they had been on the social housing list. The Council advised that it was expected that her property would become available in the first quarter 2025 within the applicants’ chosen area.

31. Ms. Hayes in her affidavit at para 22 (referencing the Council’s letter of 8 January 2025) averred that the property had not been offered for the purposes of resolving the proceedings but rather that it had become available in the ordinary course of the Council's housing management and was offered to the applicant reflective of her place in the social housing list and not otherwise. She averred that following the applicants’ application for a property based on the choice based lettings advertisements, the applicants were successful in their application based on their position on the social housing list and entered into a tenancy agreement on 11 April 2025. Ms Hayes avers that the application had become moot not because of any change of policy or unusual act of the Council but as a direct result of the Council carrying out its statutory functions in accordance with its published policies.

32. I do not believe that I can look behind those averments. This was not a case of the Council accepting that the applicants were entitled to priority on the list, contrary to the Council's previous decisions, or that the applicants were otherwise “bumped up” the list in order to effectively dispose of the proceedings.

33. It seems to me in the circumstances that the Council had discharged the onus of showing that housing was not offered to the applicants as a response to these proceedings.

9 34. On that basis, it seems to me that the default rule in mootness cases that each party bear its own costs should prevail subject to considering whether general interests of justice factors require that the applicants should nonetheless get some or all of their costs, to which I next turn.

Interests of Justice nonetheless merit a costs order in favour of applicants?

35. Counsel for the applicants submitted that, even if I were not with the applicants on the issues addressed above, there were particular exceptional factors on the facts of this case which would render it just for the court to award the applicants their costs or at least some of their costs.

36. Firstly, she relied on the fact that following the impugned decision of 2 August 2024, her solicitor wrote a number of letters to the Council in September and October 2024, inviting the Council to reconsider its position and threatening litigation. She says that she did not get a substantive response to these proceedings and it was reasonable to issue the proceedings in the circumstances.

37. Secondly, and relatedly, she pointed to the failure on the part of the Council to make clear prior to the institution of the proceedings that the applicant was nearing a point where she would be offered housing in any event. This was a matter within the Council’s knowledge and could not have been within hers. This important information was only made clear by the Council in its letter of 9 December 2024 after the institution of the proceedings; if the applicant has been told about an imminent offer of accommodation, she would not have needed to issue the proceedings in the first place. (In para 18 of her third affidavit the applicant averred that “it was only in the Council's correspondence of 9 December 2024 that it was stated to me and my solicitors for the first time that the Council anticipated that I would be accommodated within a definite timeframe. Had I been aware of this and known at any stage prior to the institution of these proceedings that we might be accommodated shortly that would obviously have influenced my decision as to whether or not to bring these proceedings. I do not understand why I was never told this.”)

10 38. Thirdly, she pointed to the fact that after the Council indicated in its letter of 9 December 2024 that the applicant could now be offered ordinary housing in early 2025, that there were some 11 adjournments of the proceedings between January and June 2025 to facilitate the Council in fact being able to deliver such housing, which was in essence a period of time where the applicants acted very reasonably but which the council used to align its ordinary course of business case (i.e. the delivery of accommodation via the ordinary list) with rendering the proceedings moot.

39. Fourthly, she says that notwithstanding its position that the proceedings were not necessary particularly once an offer of housing had been made, the Council nonetheless sought to supplement the reasons for its original refusal of priority by its letter of 8 January 2025, including the tendentious reason from the applicant’s perspective that the Council was unaware of any evidence that the applicant had experienced any domestic violence since 2019, a contention which the applicant found particularly distressing in light of the material which she had put before both the Council and the Court. This led to the applicants applying without opposition to amend their statement of grounds to cover these new reasons which the applicant maintained was further evidence of the unlawfulness of the Council's position on her application for priority status on the list.

40. In response to the submission that the “flurry of activity” that led to an offer of housing was a direct response to the issue of the proceedings, and that the Council could and should have communicated the fact that an offer of housing in the ordinary course was imminent before the proceedings issued, counsel for the Council indicated that the Council could not lawfully have made representations as to the potential availability of a property prior to the institution of proceedings in circumstances where the applicants’ entitlements to be offered a property by virtue of their place on the waiting lists had not yet arisen.

41. As is clear from the case law the court cannot embark upon a determination of the merits of the underlying case in conducting an analysis of the appropriate costs order in a mootness case.

11 42. It seems to me that both parties acted sensibly in ensuring that the proceedings were adjourned once the offer of housing was made in the ordinary course. I do not believe that I can either reward the applicants or penalise the Council for the circumstances that led to the applicants successfully applying to amend their proceedings following the Council's letter of 8 January 2024, as to do so would be to stray into the merits of the underlying claims in the proceedings.

43. While I am sympathetic to the view that the institution of the proceedings could have been avoided by the Council taking the step in response to the applicant’s pre-action letter of 22 October 2024 of making internal enquiries as to where the applicant stood on the ordinary social housing list and whether this was likely to result in the offer of accommodation in the ordinary course within a matter of weeks or months, I note that the Council’s position in correspondence (in its letter of 14 February 2025) was that that the applicant could have established her position on the list via the relevant portal on the Council’s website and I am mindful of the pressures on the Council as regards accommodation applications and the fact that the focus of the applicant’s complaint was on the failure to put her on the priority list. I also think there is substance in the submission that the Council could not have made representations as to her likely entitlement to accommodation until her place on the list in fact ripened into such an entitlement. In the circumstances, I do not think that the Council’s conduct in this regard is such as to merit an award of costs against it.

44. I can understand the first applicant’s upset at being faced with a position in correspondence (and in written submissions) on the costs application to the effect that it was not accepted that there was evidence that she had suffered domestic violence in recent years. However, the 2 August 2024 decision is more nuanced on the applicant’s circumstances and references comments said to have been made by the applicant herself (which she denies) and inquiries made of Gardai. In the absence of determining the merits of the applicant’s case and the Council's position on that case as reflected in its correspondence, which I cannot do, I do not believe I can hold that the Council’s stance on this issue was so unreasonable as to entitle the applicant to all or some of her costs of the proceedings.

12 45. The applicant I should stress seems to me to have acted reasonably in all the circumstances both before and during the proceedings given the desperate situation she regarded herself and her daughter as having been in. Her legal team acted tirelessly, skilfully and appropriately on her behalf. Nothing in this judgment should be taken to detract from that.

46. However, having accepted as I do the bona fides of the position set out on affidavit by Ms Hayes on behalf of the Council, and for the additional reasons set out above, I do not think I can safely hold that the interests of justice merit a costs order against the Council.

Conclusion

47. In the circumstances, it seems to me that the appropriate costs order is to make no orders as to costs.

48. My provisional view is that the same order should also apply to the costs hearing. I will hear the parties should they wish to apply for any order to the contrary.

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