AN ARTIST AND university lecturer is taking High Court action in order to prevent his landlord from evicting him from his home.
Kenneth Donfield has lived at a flat in 14 Pembroke Street in Dublin 2 since the early 2000s. The building is now owned by Rathdrinagh Land Ltd, a company owned by Eamon Waters.
Waters, a businessman from Co Meath, founded the Panda Waste company before selling it for €1.4 billion in 2021. He now owns a number of buildings in Dublin, including the Fade Street Social restaurant and cocktail bar building, Merrion House in Dublin 4 and the Tesco outlet on Lower Baggot Street.
The case centres on whether an eviction notice, which Rathdrinagh maintains was served on Donfield in 2018, was valid.
The legal battle has been ongoing for the last five years, with hearings having come before the District Court and the Circuit Court before now reaching the High Court.
According to a judgement served by the Circuit Court on 26 July, Donfield’s former landlord John Shields served him with the termination notice in May 2018 as he was seeking to sell the property.
Shields had appeared before the Circuit Court on that date and testified that he had served Donfield with the termination notice.
The Circuit Court ruling states that Donfield confirmed in evidence to the RTB that “he had in fact received the relevant envelope from his former landlord on the occasion in question, albeit that he does not recall opening it”.
The property was subsequently sold to Rathdrinagh Land Ltd. Shields then made an application to the Residential Tenancies Board (RTB) for adjudication.
The RTB is a private sector regulator which maintains a register of tenancies and operates a dispute resolution service for tenants and landlords.
During this process, the RTB ruled in Donfield’s favour. That ruling was then appealed by the landlord.
In a determination in November 2020, the RTB found that the notice of termination served on Donfield in 2018 was valid.
It further directed Donfield to vacate the premises within 35 days of the expiry of a ban on evictions, which was in place during the Covid-19 pandemic.
This eviction ban and rent freeze were introduced in March 2020 as an emergency measure during the pandemic. It meant that tenants could not be forced to leave a property and rent increases were prohibited while it was in place.
The ban expired in April 2023.
When Donfield did not leave the premises following the RTB ruling, Rathdrinagh applied to the District Court for an order enforcing the decision.
In March last year, the District Court ruled that it was satisfied to enforce the termination order.
Donfield then filed an appeal to the Circuit Court. The Circuit Court acknowledged that this appeal was filed within the 14-day notice period and that the RTB and Rathdrinagh were informed.
However, it states that Donfield failed to file an affidavit as proof that he had informed both parties, and therefore, the matter could not proceed and the motion was struck off.
Donfield then applied to extend the time to appeal this decision. In September last year, the six-month stay on the District Court’s order that Donfield vacate the premises expired and Donfield’s legal team were informed that the order would be enforced.
Donfield’s legal team then sought an urgent hearing to extend the time he had to appeal the order.
As there was no Circuit Court judge available at the time, an application was made to the High Court seeking an injunction to prevent the termination order from being enforced.
Judge Brian Cregan granted an interim injunction, which meant that the order could not be enforced until Donfield was given extended time to bring his appeal to the Circuit Court, due to his error with the previous application.
His appeal was heard before Judge Jennifer O’Brien at the Circuit Court last week. The ruling states that in order to grant the extension of time to Donfield, three conditions must be satisfied.
These were, that Donfield must show that he had a “bone fide intention to appeal formed within the permitted time”, that he show the existence of evidence of a procedural mistake in that appeal, and that he must establish that “an arguable ground of appeal exists”.
Judge O’Brien found that the first two conditions were met, but on the third, the ruling states that it is “apparent from evidence heard by this Court that there is no suggestion that Mr Donfield was not in fact served with the notice of termination on the date in question”.
“As such this Court is satisfied that service of the notice of termination took place in the appropriate manner,” it states.
It states that Donfield’s legal team had submitted that the conduct of the RTB hearing “was procedurally unfair”.
The ruling states that the court “had regard to the transcript” of the hearing and said it was satisfied “that the requirements of procedural fairness were complied with in those proceedings”.
“This Court is of the view that Mr Donfield has not articulated an arguable case in the sense that he has not proven on the balance of probabilities or at all that procedural fairness was not complied with in the Tribunal hearing,” it states.
“As such, this Court dismisses the application to extend time for filing an appeal. Further, the Court affirms the orders of the District Court.”
Speaking in court today, Kim Tandy BL, on behalf of Donfield, advised the court that Donfield intends to make an application to the High Court to appeal the Circuit Court ruling.
Davy Lalor BL, on behalf of Rathdrinagh, indicated that his client accepts the appeals process. He told the court that his client wants to take “a pragmatic approach” and urged that the appeal be brought “as quickly as possible so that we can resolve the matter as quickly as possible”.
Lalor stated his client’s position that the “substantive RTB determination cannot be appealed”, and that the only thing that Donfield could plausibly appeal for judgement “is not to grant leave to extend time for filing of appeal”.
“I wonder is that the case, because we now have a very strange situation,” Judge Brian Cregan said.
“The Circuit Court refused an extension of the time for which to lead appeal and has therefore decided the appeal will be dismissed. Donfield is now appealing that to the High Court,” the judge said.
He indicated that he could hear elements of the whole case if he were to grant an extension of time and overruled the Circuit Court order.
“I have to suggest that if your client wants to take a pragmatic view of this, which you say they do, perhaps they should bear that in mind,” he said.
Judge Cregan then explained to Donfield that he must submit the appeal as a lay applicant.
“You lost in the District Court, and in normal circumstances, you would appeal to the Circuit Court. But because your appeal is out of time, you have to appeal to the Circuit Court for an extension of time in which to appeal, and you lost that application,” the judge said.
“Your appeal to the Circuit Court is only an appeal against the refusal to extend time to appeal. In substance, by refusing you an extension of time to appeal, they have refused to appeal.
“In filing your notice of appeal, you may have to appeal the order of the Circuit Court refusing you an extension of time and the order refusing the appeal.”
Responding, Donfield said he was hoping, with the judge’s permission, to appeal the case and allow it to be heard “in its totality”.
He said he was “very anxious” and had “tried everything to work this out” with Eamon Waters.
“This has been going on for four years. It’s been hell,” Donfield said, saying that Judge Cregan’s court had been the only one that had dealt with the matter in a way that was satisfactory to him.
“There’s no guarantee that if the case is heard in the High Court, that I will rule in your favour. The fact is a landlord can at any time serve notice of eviction,” Judge Cregan said.
The judge urged Donfield to file his appeal today, the last day of this legal term.
Donfield said he would do this today.
Judge Cregan listed the case for mention for the first week of the new legal term in October, with the injunction to remain in place until that date.
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