Ms Justice Hyland has refused a motion brought by the State to have a Judicial Review case, in which FLAC acts for the Applicants, heard by way of a “modular trial”. FLAC’s clients are a Traveller family who are challenging a decision of Wexford County Council to suspend them from the housing list. They are also challenging the constitutionality and compliance with the ECHR of certain provisions of the housing code. The State motion sought to have the constitutional challenge heard after the issues against Wexford County Council had been determined. In her judgment of 19 March 2021, Hyland J refused the application for a modular trial for reasons including the potential prejudice to the Applicants arising from being exposed to two trials.
The background to the case is summarised at paragraph 3 of Hyland J’s judgment:
“In short, this case concerns a decision by the Council of 29 August 2019 to suspend the applicants, a family of travellers, consisting of a mother, father and two children, from the Council housing list, by reason of the conviction of Mr TB (the husband of Ms AB and the father of JB and MB both minors) for two minor public order offences.”
Section 14(1)(a) the Housing (Miscellaneous Provisions) Act 1997 permits a housing authority to refuse or defer the letting of a house to a person where the authority considers the person has been engaged in anti-social behaviour. Section 35 of the Housing (Miscellaneous) Provisions Act 2009 gives powers to a housing authority to adopt an Anti-Social Behaviour Strategy. The State are party to the proceedings because the constitutionality and compliance with the ECHR of these provisions is also being challenged.
Motion to Split the Trial
As Hyland J notes in her judgment “unusually for judicial review proceedings, there are a significant number of factual issues that will require to be determined in these proceedings”. The State sought to have the constitutional challenge heard after the issues against the Council had been determined (and the factual controversies had been resolved), on the basis that such an approach would save time and costs.
The Applicants objected on the basis that State’s interpretation of the impugned legislation would be highly relevant to the issues between the Applicants and the Council. All parties accepted that the relevant legal principles in the context of an application to split a trial were that:
- while the default position is that a trial is normally “unitary”, the court has jurisdiction to grant a modular trial;
- the relevant legal test is as set out in McCann v Desmond  4 I.R. 554, (as followed in Weavering Macro Fixed Income Fund Ltd v PNC Global Investment Servicing (Europe) Ltd  4 I.R. 68).
Judgment of Hyland J
In refusing the application, Hyland J held that she did not think a modular trial would save time or costs. She also held that “[it] would very likely to be of assistance to the court to have submissions from the State on the constitutional interpretation of [the impugned legislation]”. She also noted the potential prejudice the applicants by exposing them to two trials rather than one. She had particular regard to Mrs B having suffered from mental health issues following the decision to suspend the family’s housing application. She noted the dicta of Barr J in Pharmaceutical Assistants Association v The Pharmaceutical Society of Ireland  IEHC 663 at para. 22, where he held that “the court must have regard to the circumstances of the applicants [in considering an application for a modular trial]”.
The jurisprudence of the High Court in relation to motions for modular trials is cognisant of litigants’ right of access to the courts. In Pharmaceutical Assistants Association v The Pharmaceutical Society of Ireland, Barr J noted that:
“The court must be vigilant to ensure that procedural rules, or case management is not used in a way that may effectively frustrate the applicants exercising their constitutional right of access to the courts in a full and proper manner.”
While a modular trial may be appropriate in certain limited circumstances, such an application cannot be granted where a clear saving in time and costs cannot be identified or where it may result in prejudice to any party.
The B family now await the hearing of their case against Wexford County Council and the State, by way of a single trial.
A previous blog with more information on FLAC’s Traveller Legal Service can be accessed here.
FLAC’s recent submission to the Joint Committee on Key Issues affecting the Traveller Community on the topic of “Access to Housing and Accommodation, Including Traveller-Specific Accommodation” can be accessed here.