Latest RTB case appealed to High Court in the press

Spanish Eyes wrote: »

Any LL who provides accommodation on  behalf of the State to HAP or RAS etc. should automatically be given cover by the LA for legal fees if things go wrong. I know I am probably being naive in the extreme in calling for this, but the reality is that the tenant can get FLA ad infinitum it seems, whereas the LL must pay from own resources.

There should also be a "legal costs" insurance policy for every LL. Well worth taking out, but I suppose either none exists here, or the cost is prohibitive.

In all honesty who the feck would be a LL these days at all.

The legal costs of defending RTA section 123 High Court appeals are almost fully sustained by the RTB (they cost tens of thousand of euros each in legal fees) which is directly funded by RTB landlord registration fees and (in big part) by the taxpayer (who is loosing out big). The landlord would just be a notice party usually with a solicitor and/or a barrister writing an affidavit on his part, which cost is not astronomical, but not small (2-3k) and not recoverable. A welfare or penniless tenant as a litigant in person has to source a few hundred euros for the various court fees and that's the maximum amount he/she will loose (well worth it to delay by a further 6-9 months the eviction). There was another thread today where it was suggested to abolish automatic rights of appeal starting from RTB Tribunal and even more for High Court.
With respect to legal costs, a decent landlord insurance will cover them, but will exclude any RTB dispute, so only when case has reached Circuit Court or High Court the insurance kicks in. However the excess is usually between 500-1000 euros (quite high) and sometimes the policies cap the legal costs claims to just a few ks (even though on my multi-property insurance I have the cap at 25k which is quite reasonable in my opinion).

I shall continue on this thread because a very recent High Court judgement really nailed the public interest issues that were raised in this thread about the absurdity of the appeal system setup by the Residential Tenancies Act (only the RTB/govvie/legal profession are insterested in keeping it since they are spending a lot of taxpayers' money on it):
http://www.courts.ie/Judgments.nsf/0/D36CEEDE50913A7C802582A30045A4F4
Nestor -v- Residential Tenancies Board
JUDGMENT of Mr. Justice Twomey delivered on the 8th day of May, 2018.
Summary – thousands of euro in legal costs to appeal an award of €910
It was one of the very few times a landlord appealed a badly argued case at the RTB Tribunal:
https://www.rtb.ie/documents/TR0716-001870/TR0716-001870-DR0516-26171%20Report.pdf
the high court judge actually stated this (since the occupant was a lodger, the RTB should not not have had jurisdiction), but said he could not go back to the merits (so the landlord got got screwed massively more):
"A. RTB has no jurisdiction as premises are landlord’s dwelling?
7. First, Mr. Nestor claims that the premises in question which Mr. Tabuka occupied is Mr. Nestor’s dwelling, as distinct from a self-contained unit, and so the RTB did not have the jurisdiction to deal with the dispute between Mr. Tabuka and Mr. Nestor under s. 3(2)(g) and s. 4(2) of the 2004 Act.

8. This would appear to be a valid argument on the facts as presented by Mr. Nestor of the layout of the dwelling and indeed it is possible that if Mr. Nestor had raised this argument at the hearing before the Adjudicator or at the appeal before the RTB, which appeal is a de novo hearing, Mr. Nestor might have been successful on this point."
So the (ignorant) landlord is now left with probably tens of thousands of legal fees as the loosing party (penniless tenants never pay so they have a massive incentive to always appeal). However the most important statements of the judge are probably directed at the govvie and are well detailed below and hopefully some politician will read it (but I doubt it). Senior judges (Laffoy for example) do not like the RTA and clearly do not think it is fit for purpose, but somehow the Irish politicians keep worsening it by making amendments to it. I suggest to the readers of this forum to peruse the statements of the judge below and make their own opinion.
"Illogical to risk thousands of euro to appeal an award of €910
24. However, while deciding this substantive point of appeal before this court, it became clear that the most significant issue arising out of this appeal is that under the appeal system in place for decisions of the RTB, it is likely to cost an appellant such as Mr. Nestor several thousand euro in legal costs to appeal a case with a value of €910, which to this Court defies all logic.
25. This is because the appeal of the RTB decision under s. 123(3) of the 2004 Act is not to the District Court or the Circuit Court, but to the High Court. The hearing of the appeal in this case took circa two hours (i.e. a half-day hearing in the High Court). This means that the costs of appealing the award of damages of €910 by the RTB are likely to be many thousands of euro, since High Court litigation is so expensive. In this Court’s view this is the most significant issue arising out of this appeal.
26. This is because whether Mr. Nestor is successful or not in his appeal, it must be observed that there is something illogical with a system where it costs several thousand euro to appeal an award of €910. It means that while a landlord or tenant has an appeal in principle from a decision of the RTB, in practice very few people would risk having thousands of euro awarded against them in legal costs, if they lose, on a chance that one might recover €910. It seems to this Court that the appropriate court for appeals of decisions of the RTB is a court where the costs are commensurate with the money at stake, in this case that would be the District Court. However, the 2004 Act provides that appeals on a point of law from the RTB are made to the High Court without, it seems, any fixed costs for appeals such as these, and so one is left in a situation where an appellant risks several thousand euro in costs in order to appeal an award of €910.
Thousands of euro of taxpayers’ funds used in an appeal over hundreds of euro
27. It is not just individual landlords and tenants who are affected by the disparity between the cost of an appeal and the value of the appeal. It is also a matter that affects taxpayers. This is because the RTB is funded by the taxpayer, which means that the taxpayer is expending significant resources to defend appeals even though, if the RTB were a private-sector organisation it would have made financial sense for the RTB to simply concede the appeal and pay Mr. Tabuka the €910 award out of its own resources. This is because it would have made financial sense to pay the €910 to Mr. Nestor rather than incur thousands of euro in costs in fighting the appeal and risk an award of legal costs against the RTB and/or risk the chance that, even if the RTB won, it might not recover its costs from Mr. Nestor (if for example Mr. Nestor did not have the resources to pay the RTB).
28. While this would have been the financially sensible approach (if the RTB were a private-sector organisation), it is important to note that this Court is not suggesting that this would have the correct approach in this case.
29. This case does however highlight a more significant issue, namely that if the value of this case (€910, or indeed anything even close to that figure) is reflective of the value of appeals involving the RTB (and that may well be the case, since residential tenancies deal normally with relatively small monthly amounts of rent which are fractions of the €75,000 jurisdiction of the High Court and fractions of the costs involved), this cannot be a proper use of taxpayers’ funds. However, the law as it currently stands is that an appeal to the High Court is what is set down by the 2004 Act and it will remain so, unless the 2004 Act is amended.
Most expensive court chosen for the hearing of RTB appeals
30. It seems to this Court that the 2004 Act does not appear to have been drafted with the public in mind, since it cannot be in a tenant’s or landlord’s interests that the most expensive, rather than the cheapest, court is chosen for the hearing of their appeals. Undoubtedly it benefits the lawyers who are acting in such cases, since the fees for resolving an appeal in the High Court are many multiples of the fees for resolving an appeal in the District Court, but this approach would not appear to be benefit the public or the taxpayer.
31. It also seems to this Court that this situation epitomises some of the flaws in the current system of civil justice, where it does not always appear to have been designed with the financial interests of the users in mind. It seems to this Court that by concentrating litigation in the High Court (and so long as High Court litigation remains as expensive as it currently is), the civil justice system will live up to the well-known adage quoted extra-judicially by Kelly P. in the recent Bar Review (2018) Vol 23 No. 1 at page 1:

“Under the current system, as they say, the only people who can litigate in the High Court are paupers or millionaires”.

Yet ironically, s. 123(3) of the 2004 Act, as if oblivious to the foregoing adage, expressly provides that in relation to appeals between landlords and tenants over residential tenancies:

“Any of the parties concerned may appeal to the High Court, within the relevant period, from a determination of the Tribunal (as embodied in a determination order) on a point of law.” [emphasis added]"