Supreme Court confirms no right of audience for Company Director in court proceedings

The plaintiff/respondent, Allied Irish Banks, p.l.c. (the Bank), advanced monies to the defendant/appellant, Aqua Fresh Fish Ltd (the Company), which created a mortgage over certain lands in favour of the Bank claimed to be security for the loan. The Bank contended that the Company defaulted on its obligation to repay the loan, issued a letter of demand, sought to enforce the security and instituted special summons proceedings seeking, inter alia, an order for possession and an order for sale of the lands. While the special summons was before the Master of the High Court, Mr Flynn, the managing director and principal shareholder of the Company, applied ex parte to the High Court for permission to enter an appearance to the summons and represent the Company in the proceedings. The application was refused by the High Court on 14 May 2013. Mr Flynn appealed that decision to the Supreme Court and the Supreme Court made an order on 29 November 2013 which permitted Mr Flynn to enter an appearance on behalf of the Company, remitted to the High Court the question of further representation of the Company in the proceedings and directed that any such further application be served on the Bank.

Mr Flynn brought a motion on notice to the Bank and following a full hearing was refused permission to represent the Company by the High Court on 27 March 2015. The High Court decision was appealed to the Court of Appeal which dismissed the appeal on 2 March 2017. Leave to appeal from that decision was granted by the Supreme Court on 6 July 2017.

The Bank contended that the basic rule in relation to the representation of companies and other bodies corporate before the Superior Courts is as stated in Battle v Irish Art Promotion Centre Limited [1969] IR 252, and that the courts have a discretion, to be exercised in exceptional circumstances, to permit such a legal person to be represented by a natural person who is not a barrister or solicitor.

Mr Flynn contended for a broader approach, submitting that the rule in Battle conflicts with the State’s obligations under Article 40.3 of the Constitution to protect the rights of citizens, including the property rights of the Company and its shareholders and their right of access to the courts. They also relied upon the right to a fair trial under Article 6 of the European Convention on Human Rights and the extent to which the courts exercise discretion to hear lay persons on behalf of companies in litigation before the High Court.

Finlay Geoghegan J held that the so-called rule in Battle, when complemented by the inherent jurisdiction and discretion of the Court to permit, in exceptional circumstances, representation of a company by a person who is not a lawyer with a right of audience, continued to be the law in Ireland’s jurisdiction and was consistent with the Constitution. On the facts of this appeal, Finlay Geoghegan J held that exceptional circumstances had not been established which would warrant the Court permitting the Company to be represented by Mr Flynn. Finlay Geoghegan J held that she would propose an order dismissing the appeal.

The decision reconfirms the position that a company must engage legal representation to represent its interests in court proceedings. For further information, or if you have any queries please contact us at info@joyntcrawford.ie.

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