I resent Slander on those Judges

  • 31 October 1983
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The President of the District Court is interviewed by Kevin Dawson about his response to criticism of the Rent Courts.

When the Rent Restrictions Acts were declared unconstitutional by the Supreme Court in 1981, as many as forty thousand tenants throughout Ireland suddenly found themselves deprived of the legal protection that had been built up over a period of more than sixty years. The Coalition Government was faced with a legislative emergency, and passed temporary rent-freezing meassures while Peter Barry's Department of Environment tried to devise a means of plugging the hole that the Supreme Court ruling had blown in tenanttlandlord legislation. Three problems faced the Government. Firstly, if it was now impossible to keep rents depressed by statute, as had been done since 1923, who was going to decide what the modern rent levels should be? Secondly, how would poorer tenants be protected from the shock of having to pay rents that were about to experience sixty years' inflation in a matter of months? Thirdly, how could all of this be done without innfringing the Constitution again?

It was at the third hurdle that the Coalition's attempted solution - the :981 'Barry Bill' - fell. This Bill proposed the setting of new rents by :he District Courts. These rents would ::hen be introduced in phases over a period of four years, so that tenants would first pay the full new rent in 1986. There were to be no protective subsidies for those unable to afford that full rent. The Barry Bill was declared unconstitutional by the Suppreme Court, who ruled that the fourryear phasing period would again disscriminate against a particular group of landlords by preventing their earning a legitimate profit. This was the only occasion during his first terrn of office

when President Hillery so referred a Bill to the Supreme Court for examiination.

The next attempt at a solution was introduced in 1982 by Ray Burke, Fianna Fail's Minister. The 'Burke Act' again left the revision of formerlyycontrolled rents to the judges of the District Court, but this time provided for a system of Welfare subsidies to soften the blow of the new rents. Furthermore, the wording of the Act seemed designed to encourage the judiciary - whose decisions could be appealed to the Circuit Court but not constitutionally challenged - to keep rents low. But within weeks of the first sittings of the 'Rent Courts' last December, a public furore had deveeloped in which press, politicians, and voluntary organisations queued up to condemn the considerable increases in rent which the District Court was awarding. The Government hurriedly raised its subsidy fund from £6million to £15million. Yet the loudest conndemnation - most of which emanated from the Irish Press, from Labour TD Ruairi Quinn, and from Fianna Fail TDs Bertie Ahern and Vincent Brady - was levelled at the judges of the District Court, and focussed on the atmosphere and conduct of the rent hearings, and on the alleged harsh treatment of the old, poor, and innfirm in the Dolphin House Courts in Dublin.

The President of the District Court, Justice Thomas P. Donnelly, has agreed for the first time to respond to a number of these criticisms.

"I have not sat in a Rent Court myself, and would not talk to you at all save that I resent slanders on those judges 1 have sent there. We put a lot of work into trying to make sense of an impossible Act - wished on us by the legislature - and I am proud of the way the Courts have been conducted My inforrnation from the Civil Servie side was that Department of Environnment observers were impressed by the way cases were being dealt with."

"Tenants were blessed that the 1981 Bill (Peter Barry's Bill) fell. There would have been no Social Welfare subsidy at all under that Bill - except, of course, that the legislature was trying to make the landlord subsidise the tenant for four years. And it was that attempt that was held to be unconstitutional."

"So with the 1982 Act, we were being asked to do by judicial decision what the Supreme Court had told the legislature they couldn't do by statute. 1 think that some of our critics are disappointed that we did not, under the cloak of judicial decisions, make landlords subsidise tenants for ever. Well, the District Court and the Cirrcuit Court declined to collaborate in such dishonest subterfuge."

What about the scale of the Y V rent increases? Why were so many flats in poor condition assessed as if in good repair?

"The law says that a landlord is ˜to greatly simplify matters - generally responsible for the maintenance and repair of the exterior of a premises. The tenant, in general, is. responsible for interior repairs. Either party can legally impel the other to carry out necessary repairs. So if we fixed a low rent because of the poor condition of a dwelling, and the tenant then brought the landlord to court to make improveements, that tenant would be paying a rent unrelated to the nature of his dwelling." It is impossible, Justice Donnelly says, that a tenant might thus profit from his own neglect.

"It should be recognised that we have never given - nor would we ever give - the open-market letting value. Yet the 1981 Bill (the failed Barry Bill) gave a definition of a fair rent which amounted to nothing other than 'vacant possession' - the market value without restriction of any sort. So once the four-year phasing process was completed, rent control would have been abolished, and tenants would from 1986 have been paying a rent greater than any they'll be paying by any order of the District Courr under the 1982 Act."

"Rent disputes have always been settled in court. It didn't begin wth this Act. What is new is that tenants are entitled to their own solicitor and valuer - at the landlord's expense¸in any appeal to the Circuit Court, as well as in the first hearing. Surely in those circumstances, if the decisions of the District Court have been so bad, we would have seen a great many cases appealed?"

He reads out the figures. 1500 cases completed to date. Forty-seven have been appealed - just over three per cent. None were lowered. "There is no other court in the land, exercissing either civil or criminal jurisdiction, with the low appeal rate of that one. I mean that's phenomenal."

Thomas Donnelly opens out on his desk a sheaf of clippings in which journalists, politicians, and social worrkers roast the judiciary for a multitude of sins. Old people are said to have been 'hauled into court' and 'interroogated' in what TDs Brady, Ahern, and Quinn describe as a 'criminal atmosphere'. He is visibly furious at such descriptions. He is also angered by the repeated allegation that elderly and impoverished citizens were being trampled on by a rack-renting judiiciary. "That can only be a publicityyseeking lie. I said lie. I mean lie: a deliberate untruth."

"Do I detect an emotive attempt to equate cross-examination in our public open courts with 'interrogation' beehind closed doors in a totalitarian state? And I have seen where some politicians have shed crocodile tears about an elderly tenant being crosssexamined and brow-beaten in court by solicitors and valuers - in the plural, mark you l. No mention of the fact that one of the solicitors and one of the valuers had to be the tenant's own. That would have spoiled the dramatic effect!"

"We are delighted to see this jurissdiction depart from the Courts. Our regret is that the Minister of State €Ruairi Quinn - made so many speeches, over so extended a period, about his intention to set up a Rent Tribunal, that he must have scared every landlord into bringing every application he has to the so-called "Rent Courts" of the District Court; and I will be very much surprised if the Rent Tribunal will have much to do. It is a fact, also, that the Tribunal, which is to save tenants from the horrors of the Courts, is to be preesided over by a junior counsel whose principal duty will be to direct the Tribunal as to the meaning and effect in law of the very same unamended section that the District and Circuit Courts have had to consider when fixing rents. The forum has changed, not the law."

Ruairi Quinn comments: "The courts were not the right venue. I was the first to say that the process should be decriminalised, and that the whole apparatus of the court is designned for finding for or against, and findding people guilty. Most people are intimidated by it, even educated people. Then you've got this archaic, non-republican language they go on with: 'If it may so please my Lord', and all this sort of crap."

"What a number of the District Court judges were doing was very much against the spirit of the legisslation, which was that the actual means of the tenant were the means to be taken into account, not their means plus whatever subsidy would be given to them by the state. Perrhaps we (the Oireachtas) didn't write the legislation as clearly as we should have.

"I'm not for one moment suggessting that in an individual case a judge 's judgement is distorted, but ... there is a feeling that the Justices tend to come from one particular class. All of us have a class bias unless we connsciously look at it, and that bias, on occasion, can subconsciously reflect itself in their attitudes ... "

The rent assessment sittings of the District Court will continue until next January or February, after which they will be transferred to the new Rent Tribunal. •