Clare County Council v McDonagh & Anor [2022] IESC 2 

The Supreme Court overturned an interlocutory injunction which would have vacated a Traveller family who were unlawfully occupying a Council site. The decision was based on a proportionality assessment that hadn’t been performed by the lower Courts, and due to the protections offered by Article 45 of the Constitution and Article 8 European Convention on Human Rights. 

Facts 

The McDonaghs were a Traveller family unlawfully occupying land owned by Clare County Council. The Council sought permanent injunctions to vacate the caravans and mobile homes from the site. The Council obtained from the High Court a mandatory interlocutory injunction requiring the McDonaghs to vacate the site.  

The McDonaghs appealed, arguing that the High Court failed to consider whether their site constituted a home within the meaning of Article 8 of the European Convention on Human Rights (ECHR), and therefore had protection that would require the proportionality of the injunction and its effect to be considered. The McDonaghs further argued that Court should consider the Council’s failure to respond to its statutory duty to provide Traveller-specific accommodation options under the Housing (Traveller Accommodation) Act 1998, which resulted in them having nowhere else to reside.  

The Court of Appeal ruled that Article 8 ECHR did not confer any obligations in this instance, and was satisfied with the High Court's decision. They found that the allegations of non-compliance with the 1998 Act had not been adequately established, and even if they had, ruled that it would not be a defence. This interlocutory injunction was upheld by the and was appealed to the Supreme Court. 

Issues and Reasoning

In overturning the interlocutory injunction, the Supreme Court considered the following points:  

• Was the McDonagh’s site a “home” or “dwelling”? 
• Was the injunction proportionate, considering the Council’s failures? 
• Whether an interlocutory injunction should be a “summary judgment” 

Was the McDonagh’s site a “home” or “dwelling”? 

The McDonaghs argued that the Council should not be entitled to the injunction, as both lower Courts failed to have proper regard for the interference with the appellant's rights under Article 8 ECHR. Because of this, proportionality measurements would have to be imposed, as required by the ECHR and Section 2 of the European Convention on Human Rights Act 2003 which transplants the ECHR into domestic law.  In arguing for the consideration of Article 8, they suggested that their dwelling constituted a “home” in line with the criteria from Winterstein v. France [2013] ECHR 984. Further arguing that the fact they were illegally on the site does not vitiate these rights, per  (1997) 23 EHRR 101. 

The respondent Council argued that the McDonaghs mobile home did not meet the definition of “home” per Article 8 ECHR. They stated this was as it had only been on this site for a short time and had always been there illegally. They argued that the ECtHR jurisprudence was not applicable here owing to the short time and the illegal nature of the McDonagh’s residency upon the Council lands. They therefore suggested that suggested the Court of Appeal was correct in its application of Article 8 ECHR, where it deemed it not applicable to the facts at hand.  

The Supreme Court (Justice Gerard Hogan) considered the McDonagh’s reliance on Article 8 ECHR alone "puzzling and problematic", in that McDonagh's submissions don’t refer to Article 40.5 of the Constitution (although it came in at the Supreme Court level via IHREC’s amicus curiae). The Supreme Court took the view that the ‘inviolability’ of the dwelling outlined in the Constitution may encompass more than the ECHR. Considering Gorry v. Minister for Justice and Equality [2020] IRESC 55, Hogan J suggested that a litigant can elect to focus on either ECHR, or the Constitution, but cannot only use ECHR without the corresponding provision of the Constitution, which must also be addressed. 

In terms of the material application of Article 8 ECHR, the Court stated that the McDonagh’s caravans were not required to be at the site for a longer duration or needed to have more consistent links with the area to be considered a “home” under Article 8 ECHR (the Winterstein test), as had been suggested by the Court of Appeal. They found the Court of Appeal’s reasoning insufficient and stated that the McDonagh’s residence may satisfy the Winterstein test due to close connections with the locality, as while they had only moved to that site in 2019, the site was about 1km away from the previous site, meaning previous connections remained. 

In terms of Article 40.5, the Court stated it is a question of fact as to whether the place is one of residence, coming from the Irish “ionad cónaithe” (The People (Director of Public Prosecutions) v. Lynch [2009] IECCA 31, [2010] 1 IR 543). Previous case law also suggests that a caravan or mobile home meets the “dwelling” requirement of 40.5 (The People (Attorney General) v. Hogan (1972) 1 Frewen 360 at 36).  

Was the injunction proportionate, considering the council’s failures? 

The McDonaghs argued that the High Court and Court of Appeal failed to consider the proportionality of granting injunctive relief against the family. In particular, they argue the injunction is disproportionate due to the failure of the Council to zone Traveller accommodation, drawdown allocated Traveller-specific funding, and offer appropriate Traveller-specific accommodation as required under the Housing (Traveller Accommodation) Act 1998. 

The respondent Council argued that no evidence had been provided which proved they had failed in their statutory duty, but that even if it had, this would not entitle the McDonaghs to stay on the land.  

Justice Hogan decided the Supreme Court would consider the proportionality of the injunction, as no formal proportionality analysis had been performed at the High Court or Court of Appeal. The Court considered to what extent McDonagh's presence on the land was unlawful and whether this impacted McDonagh's Constitutional or ECHR protections. At an ECHR level, Winterstein clarified that Article 8 ECHR is not limited to homes that are lawfully established but depends on the individual facts of each case. Following the Murray case (Meath County Council v. Murray [2017] IESC 25, [2018] 1 IR 189), the Court confirmed that an illegally constructed dwelling still has Constitutional protection, although diluted and with the presumption remaining in favour of enforcing planning laws. 

The Court considered the ​​proportionality analysis from Winterstein, where the ECtHR gave weight to the loss of a dwelling being an extreme interference, compounded by the minority status of the applicants. The Court noted the similarities in this case to Winterstein. Firstly, the application involved a vulnerable minority. In the ECHR cases, this had been a “weighty factor” and brought into question its timing, modality and alternate accommodation before granting an injunction. Secondly, a critical consideration that was specific to the Council’s application, was that the Council also had statutory duties related to housing the appellants under the Housing (Traveller Accommodation) Act 1998. The Court stated if they have been private applicants this would not have arisen as a possible defence, but that here it did.  

Here, the Court stated that the Council had “arguably failed” to meet their duty to offer suitable accommodation to the McDonaghs, with the effect being that if the order was granted the appellants would have no choice but to trespass on someone else's land. While they were trespassers, the Court felt that trespassing on the lands of a housing authority was not a pressing enough threat to public safety or the interests of third parties, to warrant an interlocutory injunction. Especially when combined with the extra protections that one’s home holds, both under the aforementioned ECtHR jurisprudence arising from Article 8 ECHR and further considering Article 40.5 of the Constitution. 

The Court noted while the appellants may have been cavalier about the planning requirements of their caravans and site, unlike cases such as Murray they had not been intended to be permanent, had been essentially used out of necessity, and that ultimately they desired permanent housing via their housing authority. 

An interlocutory injunction should not be a “summary judgment”.

The Court recognised that Merck, Sharpe & Dohme Ltd. v. Clonmel Chemicals Ltd. [2019] IESC 65, [2020] 2 IR 1 makes clear that a case has to be particularly strong, and should be “merely a stepping stone” towards trial, rather than a summary judgment against the defendant (Taite v. Beades [2019] IESC 92).  

The Court also stated the fundamental objective of interlocutory injunctions is to ensure the least injustice is done. Ultimately, in the case at hand, the effect of an injunction would be that of a summary judgment. The Court stated that an interlocutory injunction should not be used in this way, noting that this was another reason why the injunction should not be granted. 

The Court emphasised that applying the Merck, Sharpe & Dohme Ltd test here, damages would not ever compensate for the removal of their home, when the net result would be they had nowhere else to lawfully go. If the situation were to change, this would have to be reviewed. 

Conclusion 

The Supreme Court overturned the decisions of the High Court and Court of Appeal, and despite the dilution of protections of the McDonagh's rights to their dwelling under Article 40.5 and Article 8 ECHR due to their unlawful occupancy, ruled that granting the interlocutory injunction would have a disproportionate effect on the McDonaghs.