High Court of Ireland Decisions

THE HIGH COURT

[2024] IEHC 749

High Court Record No.: HMCA 2024 319

Circuit Court Record No.: 2023 1301

District Court Record No.: 2021 1471

COUNTY OF THE CITY OF DUBLIN

 

IN THE MATTER OF THE RESIDENTIAL TENANCIES ACT 2004 (AS AMENDED)

APPLICATION UNDER SECTION 124 OF THE RESIDENTIAL TENANCIES ACT, (AS AMENDED)

IN THE MATTER OF AN APPEAL FROM THE DISTRICT COURT AND THE CIRCUIT COURT

 

BETWEEN

RATHDRINAGH LAND LIMITED

CLAIMANT/RESPONDENT TO APPEAL

AND

KENNETH DONFIELD

RESPONDENT/APPELLANT

AND

THE RESIDENTIAL TENANCIES BOARD

NOTICE PARTY

 

Judgment of Mr. Justice Cregan delivered on 19th December, 2024

Introduction

1.                  This is an appeal from a decision of the Circuit Court which refused to grant an extension of time to Mr. Donfield to file an appeal against the decision of the District Court to enforce a decision of the Residential Tenancies Tribunal.

2.                  I am of the view that the appeal should be allowed, that Mr. Donfield should be allowed an extension of time within which to file his appeal, and that his full appeal from the District Court to the Circuit Court should proceed in the Circuit Court.

Background

3.                  The respondent, Mr. Kenneth Donfield, is a tenant at 14 Lower Pembroke Street, Dublin 2, an old Georgian building. The house was divided into a number of flats and offices. Mr. Donfield occupied a modest two room flat at the top of the house. He commenced occupation as a tenant in or about 2003 and he has been residing in this building for over 21 years. Mr. Donfield is an artist and he also teaches Art at the National College of Art and Design ("NCAD")

4.                  The original landlord who owned the building and rented the two rooms to Mr. Donfield was Mr. John Shields. Mr. Shields and Mr. Donfield had a cordial relationship over the years and there was no history of antagonism between the parties. Mr. Donfield paid the rent every month and was never in default.

5.                  In or about 2018, Mr. Shields decided that he wanted to sell the building. The house was advertised. The advertising hoarding outside the building announced that it was for sale  and that the existing tenants would not be affected. Mr. Donfield placed some reliance on this because, he said, it assured him that his tenancy would not be affected and that he would discuss any issues about his tenancy with the new owner.

6.                  The central issue in this entire dispute is whether Mr. Shields served Notice of Termination of the tenancy on Mr. Donfield. Mr. Shields says he did; Mr. Donfield is adamant that he did not.  If Mr. Shields did, then the tenancy was validly terminated; if he did not, then Mr. Donfield's tenancy continues to this day, as no other Notice of Termination has been served.

7.                  In or about 2018, Mr. Shields sold the building to a company called Rathdrinagh Land Limited ("Rathdrinagh") a company owned by Mr. Eamon Waters. I was informed during the course of the proceedings that Mr. Waters also owns three adjoining buildings and that he intends to convert all four buildings into a hotel.

The first hearing -the hearing before the Residential Tenancies Board adjudicator

8.                  The first hearing was an application by Rathdrinagh to the Residential Tenancies Board ("RTB") to obtain a decision that the Notice of Termination was valid and that the tenancy was at an end. Rathdrinagh contended that the previous landlord, Mr. Shields, had served a Notice of Termination on 4^th May, 2018.

9.                  Mr. Donfield gave evidence at this hearing; Mr. Shields did not. Indeed Rathdrinagh presented no evidence of service of the Notice of Termination at all. The adjudicator held in favour of Mr. Donfield and held that the Notice of Termination was not served on Mr. Donfield. The Adjudicator concluded: "There is no evidence that the Notice of Termination was served by Mr. Shields on the Respondent Tenant".

10.              The Adjudicator also noted that the purchaser purchased the premises believing that there were various tenants continuing on in certain units within the building after the purchase (i.e. the house was not purchased with vacant possession).

The second hearing - the appeal before the Residential Tenancies Tribunal

11.              Rathdrinagh appealed this decision. This appeal was heard by the Residential Tenancies Tribunal ("the Tribunal") on 27^th November 2019 and its decision was given on 25^th June, 2020.

12.              Rathdrinagh appointed a solicitor and counsel to conduct its appeal. It also, in the days just before to the appeal, arranged for Mr. Shields, the original landlord, to swear a short (three paragraph) affidavit to state that he had served the Notice of Termination on Mr. Donfield on 4^th May, 2008 - not 2018.

13.              The Tribunal received a copy of  an affidavit from Mr. Shields sworn on 22^nd November, 2019. This was sent to Mr. Donfield with a covering letter on 25^th November, 2019 - just two days before the hearing.

14.              However Mr. Shields was not available on the day of the hearing before the Tribunal and therefore he did not give oral evidence before the Tribunal. He was not available to be cross-examined and he was not questioned by members of the Tribunal.

15.              Mr. Donfield, by contrast, gave oral evidence at the Tribunal, he was cross-examined at some length and he was questioned extensively by members of the Tribunal.

16.              Indeed Mr. Donfield stated in his evidence, and submissions to the High Court, that he was subjected to "oppressive" cross-examination by counsel for Rathdrinagh and "oppressive" and unfair questioning from members of the Tribunal. He says that they asked him leading questions, they confused him and they misinterpreted his answers.

17.              The Tribunal reserved its decision, and, several months later, on 25^th June, 2020 issued a written decision in which it held that Mr. Shields had served a Notice of Termination on Mr. Donfield. As a result, it held Mr. Donfield's tenancy was terminated.

18.              The central issue raised in this case, in my view, is whether the procedure of the Tribunal, in failing to ensure that Mr. Donfield had an opportunity to cross-examine Mr. Shields,  on the key issue of disputed fact in this case whilst at the same time allowing Mr. Donfield's evidence to be subjected to searching cross-examination and questioning by members of the Tribunal, amounts to a failure to comply with requirements of procedural fairness by the Tribunal. In my view, for reasons set out later in my judgment, it does.

The third hearing - Rathdrinagh's application to the District Court

19.              On 11^th June, 2021 Rathdrinagh brought proceedings in the District Court under s.124 of the Residential Tenancies Act as amended ("the 2004 Act") to enforce the order of the Tribunal. Thereafter an exchange of affidavits took place in the context of those proceedings. Mr. Eamonn Waters (managing director of Rathdrinagh), Mr. Brian Murray BL (the chair of the Tribunal), Mr. Shields, Mr. Colin Lydon (property manager of Rathdrinagh), Mr. Francis Monds (an officer of the RTB) and Mr. Donfield all swore affidavits. Rathdrinagh's application came on before the District Court on 29^th April, 2022. The judge raised certain issues, as a consequence of which the hearing was adjourned and the matter resumed on 10^th March, 2023. At the conclusion  of the hearing that day, the District Court made an order requiring Mr. Donfield to deliver up vacant possession of the property to Rathdrinagh but placed a stay of six months on the said order.

20.              The most succinct summary of Mr. Donfield's position is an affidavit sworn by him on 24^th November, 2021 in the District Court application wherein he states at para. 7:

"7. Although properly a matter for legal submission, I say and believe and am advised by my solicitor that there are substantial reasons for not making an order under section 124 of the 2004 Act and/or a manifestly erroneous decision was made by the Tenancy Tribunal in relation to a legal issue or the determination was otherwise manifestly erroneous on the evidence before the Tribunal.

8. On its face, the notice of termination is signed by John Shields as landlord and states that it is served on the 4^th May 2008. I am advised that section 6 of the 2004 Act concerns service of notices and that any notice, including a notice of termination , may be served in a number of ways.

9. I can categorically state that, contrary to what may appear to have been conceded before the Tribunal under pressure of extensive cross examination, I was not served with the Notice of Termination on the 4^th May, 2018. The Notice of Termination was not delivered by Mr. Shields to me in person; the Notice of Termination was not left at my address marked for my attention; and the Notice of Termination was not posted to me at my address marked for my attention.

10. I can say that I did meet with Mr. Shields at the dwelling on the 4^th May 2018. At that time, I had a good working relationship with Mr. Shields. I believe I was (and remain) a model tenant. I was quiet, paid my rent in full and on time and assisted the landlord by acting in a caretaker capacity from time to time and as needed. For example, I acted as keyholder when engineers or other tradespeople required access to the property and acted as a liaison between the landlord and the other tenants including in distributing new keys when the property was sold to the claimant. On the 4^th May 2018, Mr. Shields came to talk to me about his intention to sell the property. I was aware that he had an envelope in his hand which, with the benefit of hindsight, presumably contained a Notice of Termination. Mr. Shields never told me what was contained in the envelope nor did he hand it to me (or attempt to do so). At the end of our meeting, which was entirely amicable, Mr. Shields took away the envelope with him. To the best of my recollection, the outcome of the meeting was that I believed that Mr. Shields and I had agreed (or at least come to a mutual understanding) that I would deal directly with the new landlord on the question of any termination of my tenancy. I also do not believe that Mr. Shields really cared much for the new purchaser or really wanted to see my tenancy terminated.

11. At the RTB Adjudication, I gave evidence to this effect which was accepted by Ms. Mema Byrne BL, the adjudicator. Mr. Shields did not give evidence at the adjudication and no proof of service of the notice of termination was offered on behalf of the landlord.

12. I am advised by my solicitor that the burden of proof in demonstrating service of any notice rests with the landlord. To the best of my knowledge and belief, the claimant as landlord has never put forward any clear or unequivocal evidence of service. I am further advised that, in accordance with section 6(6) of the 2004 Act, the onus only shifts to the respondent where service has been proven.

13. At the RTB Tenancy Tribunal hearing, Mr. Shields did not give evidence and no proof of service was demonstrated by the claimant. To the best of my knowledge, the Tribunal also did not seek to summon Mr. Shields to give evidence. It appears that the Tribunal based its determination on certain answers or made inferences from answers that I gave. I say and believe and am advised by my solicitor that this approach taken by the Tribunal was manifestly erroneous on both a legal issue and on the evidence." (Emphasis added).

Under the 2004 Act, the District Court can make an order enforcing the decision of the Tribunal unless it is satisfied that one of the matters in s. 124(3) of the 2004 Act has not been fulfilled. The matters are limited to those set out in s.124(3). These are:

(1)   that a requirement of procedural fairness was not complied with by the Tribunal;

(2)   that a material consideration was not taken account of, or account was taken of a consideration which was not material;

(3)   that a manifestly erroneous decision in relation to a legal issue was made;

(4)   that the determination was manifestly erroneous.

21.              The District Court heard evidence from Mr. Donfield who was again cross-examined by counsel for Rathdrinagh. Mr. Shields, again however, did not give evidence in person and was not cross-examined.

22.              The District Court decided to make an order enforcing the order of the Tribunal.

23.              It must be emphasised that the application by the landlord to enforce the decision of the Residential Tenancies Tribunal before the District Court is not like a plenary case started in the District Court by a plaintiff against a defendant. In such a case the plaintiff would have the burden of proof and has to prove his case on the evidence based on the balance of probabilities. Both the plaintiff and the defendant would submit evidence to the Court by means of oral evidence subject to cross-examination. In this case the procedure was quite different. The landlord had the benefit of a determination of the Residential Tenancies Tribunal and he was seeking to enforce this determination in the District Court.

24.              The District Court therefore was bound to make an order enforcing the determination of the Residential Tenancies Tribunal unless it found that that determination was vitiated by one of the matters set out in s.124(3) of the 2004 Act.

Mr. Donfield's appeal to the Circuit Court

25.              Mr. Donfield then appealed this decision of the District Court to the Circuit Court. He filed his Notice of Appeal in time. However he did not file the appropriate statutory declaration as to service (required to accompany his Notice of Appeal) in time because he was not aware of this requirement. As a result the Circuit Court office did not accept his Notice of Appeal.

26.              Thereafter it appears that Rathdrinagh sought to enforce the District Court order for possession and a sheriff indicated that he intended to evict Mr. Donfield.

The fourth hearing - High Court proceedings - application for an injunction

27.              Mr. Donfield then tried to make an urgent ex-parte application for an injunction to a Circuit Court judge during the Long Vacation, but none was available. As a result, Mr. Donfield issued High Court proceedings, and applied for, and obtained, an ex-parte injunction to restrain his eviction. This matter was heard by me. Subsequently Rathdrinagh gave an undertaking not to enforce the District Court order pending the determination of the proceedings.

The fifth hearing - Hearing in Circuit Court on extension of time

28.              Mr. Donfield then applied to the Circuit Court for an extension of time within which to file his notice of appeal. This application was heard in the Circuit Court in or about July 2024 and the Circuit Court (Judge Jennifer O'Brien) delivered a written judgment on 26^th July, 2024, which I have had the opportunity of reading. It appears that at this hearing Mr. Shields gave oral evidence and was cross-examined - but Mr. Donfield did not give evidence.

29.              Judge O'Brien stated in her judgment that in order to assess whether it was appropriate to extend time for the purpose of filing an appeal, the court must have regard to the decision in Eire Continental Trading Co. Ltd. v. Clonmel Foods Ltd [1955] 1 IR 170. It is clear, based on the authority of Eire Continental, that three conditions must be satisfied before a court will allow an extension of time for the purpose of filing an appeal. These conditions are:

1.         The appellant must show that he had a bona fide intention to appeal formed within the permitted time.

2.         He must show the existence of something like a mistake as to procedure and, in particular, the mistake of counsel or solicitor as to the meaning of the rule was not sufficient.

3.         He must establish that "an arguable ground of appeal" exists.

30.              Judge O'Brien adverted to the statements of Lavery J. in Eire Continental that what was needed to be shown was that the proposed appeal had "substance" and was "not merely intended to gain time and to postpone the day of reckoning".

31.              Judge O'Brien also noted that in Loughswilly Shellfish Growers Co-op Society Limited v. Bradley [2013] IESC 16 the court accepted that the criteria were only guidelines and that the court retained a residual discretion to extend the time.

32.              Likewise in Goode Concrete v. CRH Plc [2013] IESC 39 Clarke J.(as he then was) stated that the three criteria discussed in Eire Continental would suffice in the vast majority of cases. However there could be cases where different considerations apply.

33.              In the Supreme Court decision in Seniors Money Mortgages (Ireland) DAC v. Gately and McGovern [2020] IESC 3 O'Malley J. stated that:

"By the same token it seems to me that, given the importance of bringing an appeal in good time - the desirability of finality in litigation, the avoidance of unfair prejudice to the party in whose favour the original ruling was made, and the orderly administration of justice - that the threshold of arguability may rise in accordance with the length of the delay., It would not seem just to allow a litigant to proceed with an appeal, after an inordinate delay, purely on the basis of an arguable or stateable technical ground., Since the objective is to do justice between the parties, long delays should, in my view, require to be counterbalanced by grounds that go to the justice of the decision sought to be appealed."

34.              In the present case, there is no suggestion that Mr. Donfield has delayed at all. Indeed it is clear that he acted to file his notice of appeal within the relevant time. Therefore there is no question of the threshold of arguability being increased because of any delay.

35.              The Circuit Court judge held that the first two conditions had been fulfilled by Mr. Donfield and then moved to consider the third ground i.e. whether there was an arguable ground of appeal.

36.              The Circuit Court held that Mr. Donfield had failed to establish an "arguable ground of appeal" and refused to extend time to file an appeal.

37.              In the Circuit Court, Mr. Donfield again argued that he was unlawfully deprived of the opportunity to cross-examine Mr. Shields as a former landlord with regard to service of the Notice of Termination.

38.              It was however of significance to the Circuit Court that Mr. Shields gave evidence to the Circuit Court in the course of this hearing and counsel for Mr. Donfield had the opportunity to cross-examine him. Judge O'Brien in the Circuit Court concluded that:

"It is apparent from the evidence heard by this court that there is no suggestion that Mr. Donfield was not in fact served with a notice of termination on the date in question. Mr. Shields gave evidence referring to his contemporaneous note in his diary with regard to the time, day and mode of serving the notice on Mr. Donfield. As such this court is satisfied that service of the notice of termination took place in the appropriate manner. Nothing further turned on the cross-examination".

39.              The court also said at para. 12 of its decision:

"[Having]Regard to the proceedings before the Tribunal and whether all requirements of procedural fairness were complied with on the issue of service, this court is satisfied that, having had regard to the transcript of the Tribunal, what was offered by each counsel to this court and the evidence that was heard in this court, that all appropriate steps were taken in the sense that the slip rule was applied to an obvious error on the face of the affidavit of service referring to '2008' rather than "2018" and most strikingly that Mr. Donfield confirmed in his own evidence to the Tribunal 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".

40.              As a result, the Circuit Court decided to refuse the application for an extension of time to appeal.  As a result, the District Court order stands and Mr. Donfield will be evicted.

41.              I would note in passing that the Circuit Court judge was in error in stating that the slip rule was applied to the affidavit. The slip rule was not applied by the Tribunal to the affidavit because it held, correctly, that the provision in the 2004 Act relating the slip rule only applied to Notices of Termination - not to affidavits.

42.              In my view, the Circuit Court judge erred in her decision for reasons which I set out later in this judgment.

The sixth hearing - the appeal to the High Court against the decision of the Circuit Court.

43.              Mr. Donfield then appealed this decision of the Circuit Court to the High Court. It is agreed between the parties that this is a de novo rehearing.

The central issue in this appeal

44.              Counsel for Rathdrinagh indicated in submissions that he was not contesting the findings of the Circuit Court judge in respect of the first two criteria of Eire Continental. In my view, this was an appropriate concession to make. Therefore the central issue in this appeal is whether or not Mr. Donfield has established an arguable ground of appeal which would permit him an extension of time within which to appeal the decision of the District Court.

45.              If he has, then this Court will allow his appeal, extend the time for the filing of the appeal and remit the matter back to the Circuit Court. If he has not an arguable case then his appeal will be refused, and the District Court order will be affirmed.

46.              In addition, given the provisions of section 124 of the 2004 Act, the central issue is whether Mr. Donfield has an arguable ground of appeal that the District Court erred in law or in fact in not holding that one or more of the conditions in section 124 of the 2004 Act had been satisfied by Mr. Donfield - i.e. in this case that a requirement of procedural fairness was not complied with by the Tribunal. The fundamental question is whether or not his appeal had substance on this point and that is the question to which I have addressed my mind.

47.              For reasons set out below, I am of the view that Mr. Donfield has established such an arguable ground of appeal. As a result, there will be an extension of time and Mr. Donfield's appeal will be remitted to the Circuit Court for a full appeal against the decision of the District Court.

The hearing before the High Court

48.              The hearing before me took place on 17^th October, 2024 between 2.30 pm and 5.30 pm. As it was Mr. Donfield's appeal, he made a very short opening. He then gave evidence under oath for a period of approximately two hours. He gave direct evidence; he was also cross-examined by counsel for Rathdrinagh and he was also asked questions by the court.

49.              Subsequently, Mr. Shields, the former landlord, also gave evidence on behalf of the defendant. He was taken through his evidence by counsel for Rathdrinagh, he was cross-examined by Mr. Donfield and he also answered questions from the court.

50.              Subsequently, the proceedings were adjourned until 1 November, 2024 to allow for legal submissions and closing arguments.

The evidence of Mr. Donfield

51.              Mr. Donfield gave evidence in the course of this hearing. He was not legally represented. Mr. Donfield's evidence on the central issue of whether he had received an envelope containing notification of the termination of his lease was unequivocal. He said that he never received any notification from his landlord, Mr. Shields, that his lease was terminated and that Mr. Shields never gave him an envelope containing the formal Notice of Termination.

52.              Mr. Donfield's evidence was that, one Friday afternoon he was in his flat at the top of the building, and he left his apartment to go downstairs to leave for the National College of Art and Design where he had to give a lecture at approximately 3.30 in the afternoon. He said that on his way down the stairs, he met Mr. Shields on the first floor and that they had a brief conversation. He said Mr. Shields indicated that he had something to give him. Mr. Donfield indicated that he was not going to accept anything, that if Mr. Shields wanted to leave it for him on the hall table he would get it on his return. He also said in his evidence that he told Mr. Shields that he would deal with the new landlord in respect of any issues about his tenancy. He said Mr. Shields agreed with this and did not hand him any envelope.

53.              Mr. Donfield's evidence was that he went off to the NCAD to deliver his lecture and when he came back to his flat later that night, there was no letter for him on the hall table or anywhere else in the building.

54.              Mr. Donfield was also clear in his evidence that he never received any envelope with any formal Notice of Termination from Mr. Shields on that day or any other time. He said that he had, in the intervening period of time, searched his apartment thoroughly to see if a letter could be located but he said he never found any copy of this letter.

55.              Mr. Donfield said that the first time he saw the Notice of Termination was at one of the hearings for the Residential Tenancies Board. He said categorically that he had never received or seen a copy of the letter of termination from Mr. Shields, his former landlord.

56.              Mr. Donfield was cross-examined at some length about evidence he had given before the Tribunal. On the face of it, some of the statements he made during the hearing before the tribunal were damaging for him and seemed to indicate that he had given evidence that he had received an envelope from his former landlord, Mr. Shields. However Mr. Donfield was at pains to state at the hearing before me, that he was, in his view, the subject of oppressive and unfair questioning from members of the Tribunal. He said that they asked him leading questions and that he was unfairly treated by the manner in which they questioned him - particularly as Mr. Shields was not subject to the same cross-examination or questions from members of the Tribunal.

57.              Mr. Donfield also indicated that the evidence which he had given to the Tribunal in response to questions from the Tribunal and Mr. William Binchy (who was acting more as a friend than as a legal representative, as he had no solicitor) were given by him in a state of some confusion as he suffered from ill-health and had not slept because of the stress of the case. He said he welcomed the opportunity in the High Court to clarify this evidence. He said he wanted to state the truth clearly and categorically  - that he had never received an envelope or any Notice of Termination from Mr. Shields.

58.              Mr. Donfield also said that he believed that the entire application by the landlord was designed to deprive him of any claim to long possession equity that he might be entitled to make in respect of the property. He said "This explanation would, to my mind, answer the question as to why I have been singled out among the other tenants that remain in occupation in neighbouring flats". He said that there were substantial reasons for not making an order under s.124 of the 2004 Act, as, he said, a manifestly erroneous decision had been made by the Tribunal in relation to a legal issue and the determination was manifestly erroneous on the evidence before the Tribunal.

59.              It was put to him in cross-examination that he had said in his evidence before the Tribunal that he had received a brown envelope with the notice of termination. As will be seen later, this could not be correct because Mr. Shields' evidence was that the letters of termination for each of the tenants were prepared and typed up by his solicitor, that he called to his solicitor's office on the morning in question, that he signed all of the termination letters and that the solicitor then put them in  white envelopes for him to give to the various tenants.

The evidence of Mr. Shields

60.              Mr. Shields also gave evidence before me. Mr. Shields said that he was advised by his solicitor that letters of termination in the correct form would have to be served on all tenants (i.e. setting out the appropriate termination dates for each tenancy - depending on the length of time the tenant had been in situ). He said that he phoned Mr. Donfield the day before he was due to serve the termination letter and he made an arrangement to meet him at 2.30 pm on the following day in the building in 14 Pembroke Street in an empty office on the first floor. He produced a diary entry which, he said, showed that he had made an arrangement with Mr. Donfield to meet at that time and that it was not a casual accidental meeting on the stairs as Mr. Donfield said it was. This diary entry  however (on which the Circuit Court judge seems to have placed some reliance) only shows that he was meeting Mr. Donfield. It does not show that he handed him a Notice of Termination.

61.              Mr. Shields' evidence was that he spoke to Mr. Donfield on this day at 2.30pm and that he handed him a white envelope containing the letter of termination. He said that Mr. Donfield accepted it and he thought that would be the end of the matter.

62.              It is clear therefore that there is a clear conflict of evidence.

63.              It is common case between the parties that Mr. Shields did not leave the Notice of Termination on the table in the hall where post was placed, or put it through the letter box or leave it at the building in any other way.

64.              If therefore the Notice of Termination was not validly served on Mr. Donfield on 4 May 2018, then the date of service on the Notice of Termination is invalid and the Notice of Termination itself is invalid under s.62(1) of the 2004 Act.

Assessment of the evidence

65.              However, it became clear to me, in the course of the legal submissions at the end of the hearing, that it would not be appropriate for me to decide whose evidence I should accept or reject. Indeed Mr. Monds (an officer of the RTB) specifically stated at para. 16 of his affidavit:

"In addition, I say and am advised that since the within application is made pursuant to s.124 of the 2004 Act, this Honourable Court should not engage in a reassessment of the evidence that was before the Board."

66.              This is a very important averment and, in my view, it is correct. It is not a matter for the District Court, the Circuit Court - or indeed the High Court - to engage in a re-assessment of the evidence that was before the Board - except with a view to considering whether any of the matters set out in s.124(3) apply.

67.              In particular, in my view, it was an error of the Circuit Court to hear further oral evidence of Mr. Shields and to make its decision based on that evidence. The fact that Mr. Shields was cross-examined in the Circuit Court does not remedy the lack of procedural fairness in the Tribunal. Moreover, the Circuit Court, as I was informed, did not hear oral evidence from Mr. Donfield, to consider his evidence.

Legal principles

68.              Section 124 (1), (2), and (3) of the 2004 Act, as amended, provide as follows:

"(1) If the Board or a party mentioned in a determination order is satisfied that another party has failed to comply with one or more terms of that order, the Board or the first-mentioned party may make an application under this section to the District Court for an order under subsection (2).

(2) On such an application and subject to section 125, the District Court shall make an order directing the party concerned (the "respondent") to comply with the term or terms concerned if it is satisfied that the respondent has failed to comply with that term or those terms, unless—

(a) it considers there are substantial reasons (related to one or more of the matters mentioned in subsection (3)) for not making an order under this subsection, or

(b) the respondent shows to the satisfaction of the court that one of the matters specified in subsection (3) applies in relation to the determination order.

(3) The matters mentioned in subsection (2) are—

(a) a requirement of procedural fairness was not complied with in the relevant proceedings under this Part,

(b) a material consideration was not taken account of in those proceedings or account was taken in those proceedings of a consideration that was not material,

(c) a manifestly erroneous decision in relation to a legal issue was made in those proceedings,

(d) the determination made by the adjudicator or the Tribunal, as the case may be, on the evidence before the adjudicator or Tribunal, was manifestly erroneous." (emphasis added)

69.              Section 124 of the Residential Tenancies Act, 2004(as amended) therefore provides that one of the grounds that the District Court can refuse to enforce the order of the Residential Tenancies Board is if a requirement of procedural fairness has not been complied with.

70.              The fundamental issue in this case - and has been from the very start - is whether Mr. Shields served the notice of termination upon Mr. Donfield. Mr. Donfield is adamant that he did not; Mr. Shields' evidence is that he did. There is therefore a conflict of evidence between these two persons, and it is a matter for the decision-making body (i.e. the Tribunal) to hear the oral evidence of both parties at the same time, to permit cross-examination of both witnesses, to ask questions of both witnesses at the same time and then to decide which of the witness's evidence it prefers to accept and/or reject.

71.              Mr. Donfield submitted that " I received repeated oral and written assurance that I would be given a right to cross examine witnesses on their evidence but despite that, I was given no such opportunity, the objection made on my behalf was discounted, the prospect of any application to allow for the issuing of a witness summons was shut out and instead I was examined until the Tribunal said that it had sufficient evidence to grant the landlord the relief it sought. I do not accept that I received anything like due and fair process from the RTB in these circumstances".

The issue of cross-examination

72.              The essential issue in this appeal is whether a requirement of procedural fairness was not complied with in the hearing before the Tribunal - because the Tribunal permitted cross-examination of Mr. Donfield whilst it did not allow for the cross-examination of Mr. Shields on this central issue of fact.

73.              In McGrath on Evidence (3^rd ed.) at para. 3-93, the learned authors state as follows:

"3-93.

Cross-examination is considered to be of pivotal importance in the trial process. Wigmore has described cross-examination as "the greatest legal engine ever invented for the discovery of truth. That view was echoed by Hardiman J in Maguire v Ardagh  who extolled the value of cross-examination as a truth eliciting process:

'Where a person is accused on the basis of false statements of fact, or denied his civil or constitutional rights on the same basis, cross-examination of the perpetrators of these falsehoods is the great weapon available to him for his own vindication. Falsehoods may arise through deliberate calculated perjury (as in the case of Parnell), through misapprehension, through incomplete knowledge, through bias or prejudice, through failure of memory or delusion. In some cases a witness may not be aware that his evidence is false. A witness may be telling the literal truth but refrain, or be compelled to refrain, from giving a context which puts it in a completely different light. And a witness called to prove a fact favourable to one side may have a great deal of information which he is not invited to give in evidence, favourable to the other party."

74.              The learned authors also state at para. 3.95:

" Given the importance of cross-examination to the trial process, it is unsurprising that the right to cross-examine is considered to be a fundamental procedural right in this jurisdiction, constitutionally guaranteed in both civil and criminal cases. In State (Healy) v Donoghue, Gannon J stated that, among the procedural rights enjoyed by an accused by virtue of Art.38.1, was a right "to hear and test by examination the evidence offered by or on behalf of his accuser. Subsequently, in Donnelly v Ireland, Hamilton CJ described the right to cross-examine as an "essential ingredient in the concept of fair procedures". In The Criminal Law (Jurisdiction) Bill, 1975, O'Higgins CJ summarised the position by saying that:

'An opportunity to cross-examine on behalf of the accused any witness called against him is fundamental to a trial in due course of law and the taking of evidence for production at such trial without such an opportunity would be contrary to the Constitution.'

3-96.

The right to cross-examine also enjoys constitutional protection in civil cases by virtue of the guarantee of the personal rights of the citizen contained in Art.40.3. Delivering the judgment of the Supreme Court in Re Haughey, Ó Dálaigh CJ stated that Art.40.3 "is a guarantee to the citizen of basic fairness of procedures" which required, inter alia, that the defendant in that case "be allowed to cross-examine, by counsel, his accuser or accusers". Again, in Donnelly v Ireland, Hamilton CJ stated that:

'the central concern of the requirements of due process and fair procedures is the same, that is to ensure the fairness of the trial of an accused person. This undoubtedly involves the rigorous testing by cross-examination of the evidence against him or her.'

3-97.

More recently, in People (DPP) v MD, Peart J reiterated that:

'The right to cross-examine one's accuser is so firmly embedded as part of the constitutional right to a trial in due course of law guaranteed under Art. 38.1 of the Constitution that by now it requires no authority for its support, and can be simply stated as a truism. Subject to the trial judge's entitlement, even duty, to control the trial and give appropriate rulings, the defendant's right to cross-examine should be left unhindered, and should be facilitated as far as practicable.'

3-98.

The constitutional position is reinforced by the position under the European Convention on Human Rights, Art.6(3)(d) of which stipulates that an accused has "the right to examine or have examined witnesses against him". In Kostowski v The Netherlands, it was held by the European Court of Human Rights that an accused must be afforded an adequate and proper opportunity to question and challenge a witness giving evidence against him.

3-99.

It follows that a party to civil proceedings is entitled to cross-examine any witness called by an adverse party unless there is a statutory curtailment of the right to cross-examine."

75.              Hardiman J. in Maguire v. Ardagh [2002] IESC 21 referred to In Re Haughey and stated:

"Accordingly, the right to cross-examine one's accuser is a constitutional right and not a concession. It applies, as In Re Haughey affirmatively demonstrates, in an Oireachtas Committee or Subcommittee as well as in any other forum in which a citizen may be accused. It is an essential, constitutionally guaranteed, aspect of fair procedures."

And later he stated:

"A person cannot be put on risk of a grave finding of fact against him without a full opportunity of defending himself or herself, including by cross-examination."

76.              In the present case, the Tribunal made a "grave finding of fact" against Mr. Donfield (i.e. that he had been served with a Notice of Termination) which would result in his eviction and render him homeless (he says) without giving him a full opportunity of defending himself by cross-examining Mr. Shields. If this had been done - and if the Tribunal had questioned Mr. Shields as they questioned Mr. Donfield - it is entirely possible that the Tribunal could have decided to prefer the evidence of Mr. Donfield over that of Mr. Shields and come to a different conclusion.

77.              In Stulpinaite v. The Residential Tenancies Board and Michael Whelan [2021] IEHC 178, Barr J. considered an appeal by a tenant pursuant to s. 123 of the Residential Tenancies Act, 2004 (as amended) against the determination order issued by the RTB in which it determined that the notice of termination which had been served by the landlord was valid.  The tenant challenged the notice of termination. The adjudicator upheld the notice of termination.  The tenant appealed that to the Tenancy Tribunal which again upheld the validity of the notice of termination.  The tenant appealed to the High Court. The appeal in that case therefore was on a point of law against the findings made by the Tenancy Tribunal.  One of the arguments made by the tenant was that the notice party (i.e. the landlord) did not give evidence before either the adjudicator or the Tribunal; that, given the history of the matter between the tenant and the landlord, the Tribunal ought, of its own motion, to have secured the attendance of the notice party before it to give oral evidence and that by failing to take that step, the Tribunal effectively denied the appellant her right to cross examine the notice party.

78.              In response, the RTB and the landlord submitted that the tenant had not been denied a right to cross examine the notice party. They submitted that such a right did not exist because the notice party had not given any evidence before the Tribunal. 

79.              Barr J. (at para. 18 of his decision) drew attention to the procedures which are adopted by the Tribunal.  In particular, he drew attention to para. 6 which states as follows:-

" The Tribunal may summon/ask witnesses to appear before it. If you want a witness to be subpoenaed to appear on your behalf, you must ask the RTB at least ten days before the scheduled hearing date. Witnesses are entitled to the same immunities and privileges as if before the High Court."

80.              Barr J. also noted at para. 63 of its decision:-

"Furthermore, the parties to the dispute are given the express right under the Act, to cross examine any witnesses that may be called to give evidence before the Tribunal."

81.              Barr J. concluded (at para. 70 of his decision):-

"The right to cross examine witnesses that may be called against a person is a fundamental right.  However, it only arises where a person has given evidence at the hearing.  One cannot have a freestanding right to cross examine people who are not called to give evidence at the substantive hearing."

82.              However, that case be distinguished from the present case in that Mr. Sheils did give evidence to the Tribunal by way of affidavit and his evidence was accepted.

The decision of the Tribunal

83.              It was interesting to note that in its decision the Tribunal recited the evidence given by Mr. Shields in his affidavit and accepted that evidence.

84.              The Tribunal then set out the evidence of the respondent tenant Mr. Donfield and stated as follows:

"The respondent tenant stated that the former landlord approached him on a Friday afternoon and told him that he was selling the property. He stated that he had an envelope which was important and he wanted to give it to the respondent tenant. The respondent tenant stated that he asked what it was and the former landlord stated that his solicitor had advised him to give it to the respondent tenant. The respondent tenant said he informed the former landlord that he was not going to take it as he had been advised not to, from somebody in his faculty in university. He claimed the former landlord accepted this and he did not seek to advance delivery of the envelope."

85.              It is interesting just to pause there, because if there had not been any cross-examination of Mr. Donfield, and/or if the Tribunal had not asked any questions of Mr. Donfield, then the Tribunal was faced with two competing versions of the evidence. It then had to decide which to accept. It was only after the cross-examination of Mr. Donfield and the questioning of Mr. Donfield by the Tribunal (which of course did not happen in relation to Mr. Shields), that the Tribunal decided to come to the conclusion that Mr. Donfield had been served with the Notice of Termination letter. In my view, that is a manifest procedural unfairness in this case.

86.              I also note that counsel for the landlord was asked by the chairman of the Tribunal about the whereabouts of Mr. Shields on the day of the hearing, given that he was in a position to swear an affidavit a few days earlier. Counsel for the landlord stated:

"Mr. Shields is otherwise engaged today and we couldn't get him to attend this Tribunal. We've had difficulties getting Mr. Shields to attend on our behalf. Any information Mr. Shields wishes to communicate to us has been through his solicitors Gartland Furey." (emphasis added)

87.              Subsequently counsel for the landlord stated:

"So in terms of going into evidence all I can do is submit that the affidavit of service [of the Notice of Termination] has been furnished in this case. We don't have the benefit of having the old landlord present today who served the Notice of Termination. We are quite hamstrung in that respect. We believe that the affidavit of service of John Shields was sufficient in order for us to prove that the Notice of Termination was served. We don't believe that there is many issues at stake between - many issues that are disputed between the parties. They are quite net issues. And if Mr. Binchy wishes to dispute that there was service in this case - I think service, everything turns on service in this case". (emphasis added)

88.              It is clear therefore that the Tribunal was aware, in the words of counsel for the landlord, "that they had "difficulties in getting Mr. Shields to attend on our behalf" and that they were "quite hamstrung in that respect" and that the issue of service was of central importance in the case. Moreover the statements of Counsel begged the question as to why Rathdrinagh had difficulties in getting Mr. Shields to attend to give evidence. In those circumstances, it was incumbent upon the Tribunal to ensure proper procedural fairness between the parties, and to ensure that Mr. Shields was compelled to give oral evidence and to be cross-examined. But the Tribunal did not do this.

89.              In substance what happened was that the Tribunal tried to deal with this conflict of evidence by interrogating Mr. Donfield, and then using any admissions (or lack of clarity) in his evidence, to make a finding that the evidence of Mr. Shields should be preferred.

90.              This was all the more surprising because the Tribunal was given an affidavit by Mr. Shields which was manifestly incorrect on the face of it. Mr. Shields indicated that he served the Notice of Termination on 4^th May, 2008 not 4^th May, 2018. Whilst Rathdrindagh's counsel might have submitted to the Tribunal that this was a typographical error, Mr. Donfield's representative – and indeed members of the Tribunal – would have been entitled to cross-examine Mr. Shields on his obvious carelessness in swearing a three paragraph affidavit in which the crucial date was incorrect.

91.              I have read the entire transcript of the hearing before the Tribunal. It seems clear to me that this lack of procedural fairness leaps off the pages. One sees in the cross-examination of Mr. Donfield by counsel for Rathdrinagh, that Rathdrinagh relied on the affidavit of Mr. Shields  and sought to suggest to Mr. Donfield that he was calling Mr. Shields a liar because his evidence conflicted with that of Mr. Donfield. Mr. Donfield responded by saying that Mr. Shields was an elderly gentleman and could be confused. One also sees a number of hypothetical questions put by members of the Tribunal to Mr. Donfield which perhaps served more to obscure than illuminate the facts in dispute.

92.              The burden of proof was on Rathdrinagh to prove its case and the burden of proof was on Rathdrinagh to establish service of the termination letter. The evidence of Mr. Shields was critical. Mr. Shields however swore a three paragraph affidavit to say that he had served the Notice of Termination on the 4^th May, 2008 but gave no further details about the encounter, or the incident, or the conversation or what happened at all. The evidence of service was "very meagre indeed" as Mr. Binchy characterised it. In contrast the evidence of Mr. Donfield about the interaction was detailed and specific. It is equally possible that Mr. Shields when faced with a cross-examination by Mr. Binchy and further questioning by members of the Tribunal could well have made the sort of admissions and qualifications that Mr. Donfield made.

93.              I have no doubt therefore that there was a lack of procedural fairness in the manner in which this appeal before the Tribunal was conducted and it resulted in the hearing being skewed against Mr. Donfield.

94.              It is also the case that Mr. Donfield appears to have made admissions that he did receive the document. However those admissions have to be understood in the context of the Tribunal hearing. I think it is clear from a reading of the transcript that Mr. Donfield was becoming increasingly confused; he was being asked hypothetical questions by members of the Tribunal; he was under stress, he was not feeling very well, he had just been to the doctor; he had not slept. In his evidence to the High Court however - and indeed in his affidavit he swore before the District Court - he was adamant that he never received the letter of termination.

95.              The Tribunal decision notes that the rules of the RTB set out the procedure to be followed. The appellant, Rathdrinagh, would present its case first; then "there would be an opportunity for cross-examination on behalf of the respondent tenant". However, in fact, in relation to Mr. Shields, the critical witness, this did not happen. Mr. Shields' evidence on affidavit was taken as having proved service of the Notice of Termination. Indeed the report of the Tribunal states as follows at para. 5:

"An affidavit of service of Mr. John Shields sworn on 22 November, 2019 was presented to the Tribunal. The affidavit of service avers that Mr. Shields was the owner of the dwelling and that on 4 May "2008" he personally served the respondent tenant with Notice of Termination by personally handing him the Notice...

"It was submitted on behalf of the appellant landlord that service was therefore clearly effected and no challenge was brought by the respondent tenant within 28 days...."

"It was stated that Mr. Shields was unable to attend the Tribunal hearing and that his evidence is set out in the sworn affidavit of service."

96.              It is clear that Mr. Shields should have been available to be cross-examined by Mr. Donfield and Mr. Binchy. He was not. Rathdrinagh had to discharge the burden of proof that Mr. Shields had in fact served a Notice of Termination on Mr. Donfield. This it purported to do by supplying a very short affidavit of Mr. Shields who baldly stated that he had given the Notice of Termination to Mr. Donfield on an incorrect date. However on the central issue in the appeal, Mr. Shields could not be cross-examined (or asked questions by members of the Tribunal) because he did not appear at the appeal.

97.              It is no answer for the Tribunal - or Rathdrinagh - to say that Mr. Donfield could have asked the Tribunal to subpoena Mr. Shields. First, it is for the Tribunal to conduct its appeals in accordance with fair procedures; secondly, the Tribunal has powers to summon witnesses and could have done so; thirdly, Mr. Donfield was only given Mr. Shields' affidavit two or three days before the appeal hearing. Therefore, even according to the Tribunal's own procedures there was insufficient time for Mr. Donfield to ask the RTB to ask a witness to be subpoenaed.

98.              Although the Tribunal is entitled to adopt relatively informal procedures in relation to its dispute resolution processes under the Act, it is obliged to ensure that its procedures are carried out fairly and in accordance with the requirements of constitutional and natural justice.  See Kiely v. Minister for Social Welfare [1977] IR 267; Doyle v. Private Residential Board [2015] IEHC 724.

99.              Barr J. also noted at para. 62 of his decision in Stulpinaite that, under the 2004 Act, the Tribunal has been given wider parties powers then those enjoyed by a court.  "It can subpoena witnesses on its own behalf; it can demand production of documents to it and it can receive unsworn evidence.  Thus it can be seen that the Tribunal does not act in a strictly adversarial scenario, in that it has powers of it own to ensure that the relevant witnesses and documentation are placed before it so as to be put in a position to resolve the dispute.  It can take the necessary steps itself to ensure that it has adequate evidence to decide the dispute."

100.          In the circumstances therefore, it was always open to the Tribunal itself to seek to compel Mr. Shields to give evidence and to be available to be cross examined.  It did not do so.  The Tribunal could have summoned Mr. Shields and, indeed should have done so, in circumstances where his evidence was critical to the dispute between the parties and where one party only was subject to cross-examination.

101.          This is not pure formalism on the part of this Court in insisting on this issue.  I am of the view that members of the Tribunal, as the fact-finding body in this case, could well have come to a different conclusion on whether Mr. Shields had effected service of the notice of termination if they had been in a position to hear Mr. Shields being cross-examined (and if they have been in a position to ask him searching questions of their own) just as they did with Mr. Donfield.  It is not only the failure to permit Mr. Donfield cross-examine Mr. Shields; it was the failure of the Tribunal itself to compel Mr. Sheils to attend to give evidence on the central disputed question of fact and the disparity of treatment meted out to Mr. Donfield (as compared to Mr. Shields) that resulted in a significant lack of procedural fairness in the manner in which the Tribunal conducted this hearing.

102.          I would also note in passing that s.64A of the 2004 Act provides that the Tribunal may make a determination that there has been a "slip" in the Notice of Termination. It has no power to determine that there has been a "slip" in an affidavit. In this case, Mr. Shields had sworn an affidavit in which he said that he had served the Notice of Termination on 4 May 2008 - not 2018. The Tribunal has no power to amend this affidavit under the slip rule or otherwise. It had to hear evidence about how this error arose and how Mr. Shields swore his affidavit without noticing or correcting this error. It also raises questions about the reliability of Mr. Shields' evidence. If he was in error about the date on his affidavit and careless in reviewing his own short affidavit before swearing it, then his evidence about actually serving Mr. Donfield could be equally questionable.

103.          Fundamentally however, the issue of whose evidence to accept - that of Mr. Donfield or Mr. Shields - is a question of fact for the fact-finding Tribunal i.e. the Residential Tenancies Tribunal not the District Court, or the Circuit Court, or the High Court.

Assessment

104.          I am of the view that the Residential Tenancies Tribunal erred in not following fair procedures in this matter. The central issue of fact in this case was whether Mr. Donfield received a notice of termination. There were only two witnesses to this event - Mr. Donfield and Mr. Shields. However the Tribunal accepted an affidavit from Mr. Shields stating that he did give an envelope to Mr. Donfield. Mr. Shields was not called as a witness by the Tribunal and he was not available for cross examination to Mr. Donfield or Mr. Binchy. In contrast, Mr. Donfield says that he was cross-examined by counsel for Rathdrinagh at considerable length and that he was also subject to oppressive and unfair questioning by members of the Tribunal.

105.          In my view, this significant disparity of treatment afforded to Mr. Donfield and Mr. Shields by the Residential Tenancies Tribunal and the failure to allow for the cross-examination of Mr. Shields meant that a fundamental requirement of procedural fairness was not complied with. It would not necessarily arise in respect of every single witness on every single issue. But on the facts of this case, there was a fundamental divergence of evidence between the two central witnesses on the central issue in the case. However the Tribunal saw fit to allow one witness i.e. Mr. Donfield to be cross-examined and then to subject him to searching questions by the Tribunal whereas Mr. Shields was not cross examined by anyone and was not subject to any questioning by members of the Tribunal. In my view, this requirement of procedural fairness was manifestly not complied with.

106.          Moreover, it is entirely possible that the Tribunal - as the finder of fact - could well have come to a different conclusion on the issue of service of the Notice of Termination if it had also heard the evidence of Mr. Shields under cross-examination.

107.          It was submitted by Rathdrinagh that Mr. Donfield had a right to cross-examine Mr. Shields - but only if his evidence had consistently been that he had never been served with the Notice of Termination. But that submission, in my view, misses the point. First, Rathdrinagh was the appellant; it had the burden of proof. It had to go first and lead its evidence - i.e. that of Mr. Shields; secondly, Mr. Shields would have been cross-examined about the entirety of the interaction with Mr. Donfield; thirdly, Mr. Donfield would have given evidence after Mr. Shields had been cross-examined and after he had answered questions from the Tribunal; fourthly, Mr. Donfield's evidence, on which the Tribunal - and now Rathdrinagh - rely was only elicited in a cross-examination which was procedurally unfair and which Mr. Donfield disavowed completely in his affidavit before the District Court and in his oral evidence before the High Court.

108.          If the Tribunal had decided not to accept Mr. Shields' affidavit evidence because he was not present to give oral evidence and be cross-examined, then Rathdrinagh would have had no evidence at all of service of the Notice of Termination, Mr. Donfield would not have needed to go into evidence and Rathdrinagh's appeal would have been dismissed outright.

109.          As Rathdrinagh's supplemental submissions state at para. 4: "The only evidence properly before the RTB Tribunal on the pivotal question of whether Mr. Shields served Mr. Donfield with a Notice of Termination on 4 May 2018 was Mr. Donfield's own evidence, which ultimately accorded with the contests of Mr. Shields affidavit." This, in my view, neatly encapsulates the problem. Mr. Shields' affidavit evidence was arguably not properly evidence before the Tribunal at all - in circumstances, where he refused to attend the Tribunal hearing and be cross-examined.

110.          Rathdrinagh submitted that the right to cross-examine presupposes a factual controversy between the parties. In this case, there is indeed such a controversy - on the central issue of fact in the case.

111.          Rathdrinagh also submitted that the right to cross-examine only applies to witnesses called to give evidence at the hearing, that Mr. Shields was not called to give evidence and therefore Mr. Donfield was not entitled to cross-examine. In my view, that argument is misconceived. Mr. Shields did give evidence on affidavit; that evidence was admitted; it was relied on by Rathdrinagh and the Tribunal as evidence of service of the Notice of Termination. In those circumstances, Mr. Donfield clearly had a right to cross-examine.

112.          Rathdrinagh has complained about the number of hearings in this case. However, in many ways, Rathdrinagh has only itself to blame for all these hearings. At the first hearing brought by it, it failed to provide any evidence of service of the Notice of Termination; at the second hearing it failed to provide Mr. Shields to give evidence at the hearing and make him available to be cross-examined; during the Long Vacation, it could have been held off seeking Mr. Donfield's eviction until he had a chance to bring his application to a Circuit Court Judge; that would have obviated the necessity of High Court injunction proceedings; at the Circuit Court appeal, instead of allowing Mr. Donfield's appeal to the Circuit Court on the extension of time, it decided to fight the issue on a technicality (about the extension of time) instead of allowing Mr. Donfield fight that appeal on its merits. Indeed I indicated to Rathdrinagh at one of the case-management hearings before me that this was always open to them. Thus it is responsible for that Circuit Court hearing and the subsequent High Court appeal on this point; Again and again, Rathdrinagh has made decisions which prolonged this process. It cannot be heard therefore to complain about the delays which it has caused.

Conclusion

113.          I would conclude therefore that Mr. Donfield has manifestly established to the satisfaction of this Court that he has an "arguable ground of appeal" that a requirement of procedural fairness was not complied with by the Tribunal such that its decision should not be enforced but rather that the matter should be remitted to the Tribunal for a fresh hearing.

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