About this case:

• Citation:
  [2026] IEHC 73
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Cian Ferriter

Delivering judgment for the High Court, Mr Justice Cian Ferriter emphasised: “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.”

Background

The applicants, a mother and daughter, had been on Dublin City Council’s ordinary social housing list since June 2018. 

The first applicant alleged that she and her daughter had been subjected to physical and psychological domestic violence by her ex-partner and that her daughter had complained of sexual abuse against him.

In 2019, the first applicant applied to the council under s.22 of the Housing (Miscellaneous Provisions) Act 2009 for priority on the social housing list on the basis of exceptional social grounds, in circumstances where the property they were living in had formerly been owned with her ex-partner.

That application was refused and the first applicant applied for priority again in September 2023, when her ex-partner’s behaviour continued to worsen. The application was refused again and did not change upon review.

On 2 August 2024, the council issued a further decision maintaining its refusal to place the applicant on the priority list, referencing a conversation between the first applicant and a senior social worker in which the first applicant allegedly stated that she was not nervous about living close to her ex-partner as she had an active protection order in place.

The applicants’ solicitors sent further correspondence in September and October 2024 inviting the council to revisit its decision, and on 22 October 2024, sent a pre-action letter to the council.

The applicants were provided with short-term emergency accommodation by Sonas from 26 September 2024.

On 11 November 2024, the applicants were granted leave to bring judicial review proceedings seeking to quash a decision of 2 August 2024. 

On 9 December 2024, the council wrote to the applicants’ solicitors re-iterating that the applicants were not entitled to priority on the housing list, but that due to their length of time on the list, a choice-based letting would become available early in 2025 within the first applicant’s chosen area.

The letter proposed an adjournment of the matter to facilitate engagement “with a view to resolving the matter”.

The applicants’ solicitors replied noting that accommodation had been offered for the purposes of resolving the proceedings. This characterisation was rejected by the council, reiterating that the applicants’ request for housing was being dealt with on the basis of their position on the ordinary social housing list.

The provision of the choice-based letting was delayed by a number of months due to circumstances allegedly outside of the council’s control, leading to the adjournment of the proceedings some 11 times until the accommodation materialised.

The applicant was formally offered housing on 11 April 2025, and by accepting same, she rendered her proceedings moot. The applicants applied to the High Court for their costs.

The High Court

Having considered the relevant jurisprudence, Mr Justice Ferriter was unconvinced by the submission that notwithstanding the legal characterisation of the basis of housing being offered to the applicants, they had been successful on the core event of whether or not housing should have been provided by the council.

The judge explained that the event for the purposes of section 169 of the Legal Services Regulation Act 2015 “is inevitably determined by the issues raised and relief sought in the proceedings. In her 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.”

The court also had regard to the contention that the mootness arose by virtue of a unilateral act of the council in offering the applicants housing and that the council timed its offer of housing so as to render the proceedings moot.

Applying the principles set out in Hughes v Revenue Commissioners [2023] 3 IR 393, Mr Justice Ferriter accepted that the proceedings became moot due to the council’s actions, but that the real question was whether, on the evidence, the council had discharged the onus of demonstrating that its actions were not undertaken in response to the proceedings.

In that regard, the judge considered an affidavit sworn by a senior official in the council who averred inter alia that the property had not been offered for the purposes of resolving the proceedings but rather 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.

Finding that the court could not look behind those averments, Mr Justice Ferriter confirmed that this was not a case of the council accepting that the applicants were entitled to priority on the list contrary to its previous decisions, or that the applicants were otherwise “bumped up” the list in order to dispose of the proceedings.

As to whether general interests of justice factors required that the applicants would receive some or all of their costs, the court considered the applicants’ submissions including that the council had not substantively responded to correspondence with their solicitors in September and October 2024, had failed to clearly indicate prior to the institution of the proceedings that the applicants were close to being offered housing, and had advanced further reasons for its refusal in January 2025, leading the applicants to make an unopposed application to amend their statement of grounds.

Noting the council’s submission that it 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 an offer by virtue of their place on the waiting list had not yet arisen, Mr Justice Ferriter was satisfied that the court could not embark upon a determination of the underlying merits of the claim in the course of analysing the appropriate costs order in a mootness case.

Expressing that the court was sympathetic to the view that the institution of proceedings could have been avoided by the council making internal enquiries as to where the applicants stood on the housing list following the receipt of the pre-action letter in October 2024, Mr Justice Ferriter noted the council’s contention that the applicant could have established her position on the list via the relevant portal on the council’s website.

The court further expressed that it was mindful of the pressures on the council as regards accommodation applications and the fact that the focus of the applicants’ complaint was on the failure to put them on the priority list.

Conclusion

Accordingly, the High Court made no order as to costs.

SM & Anor v Dublin City Council [2026] IEHC 73