Allied Irish Bank Plc v Aqua Fresh Fish Ltd

JurisdictionIreland
JudgeMs. Justice Finlay
Judgment Date18 October 2018
Neutral Citation[2018] IESC 49
CourtSupreme Court
Docket Number[Appeal No: 2017/0065],[S.C. No. 65 of 2017]
Date18 October 2018
Between/
Allied Irish Bank plc
Plaintiff/Respondent
and
Aqua Fresh Fish Limited
Defendant/Appellant

[2018] IESC 49

Finlay Geoghegan J.

Clarke C.J.

Dunne J.

Charleton J.

O'Malley Iseult J.

Finlay Geoghegan J.

[Appeal No: 2017/0065]

THE SUPREME COURT

Right of audience – Representation – Exceptional circumstances – Appellant seeking to be represented in proceedings before the Superior Courts by a person who is not a lawyer with a right of audience – Whether exceptional circumstances had been established

Facts: The plaintiff/respondent, Allied Irish Bank plc (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. The Company and 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.

Held by Finlay Geoghegan J 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.

Appeal dismissed.

Judgment of Ms. Justice Finlay Geoghegan delivered on the 18th day of October, 2018.
1

This appeal raises the difficult question of the entitlement of a company to be represented in proceedings before the Superior Courts by a person who is not a lawyer with a right of audience. In particular, it raises the continued application of the decision of the Supreme Court in Battle v. Irish Art Promotion Centre Limited [1969] I.R. 252 (' Battle') when considered together with the later decision of the Supreme Court in Coffey v. The Environmental Protection Agency [2014] 2 I.R. 125 (' Stella Coffey').

Background Facts
2

Allied Irish Bank plc ('the Bank') advanced monies to Aqua Fresh Fish Limited ('the Company') which created a mortgage over certain lands in favour of the Bank now 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 the present special summons proceedings seeking, inter alia, an order for possession and an order for sale of the lands.

3

While the special summons was before the Master of the High Court, Mr. Adrian 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. Mr. Flynn has no professional legal qualification. The application was refused by the High Court (Peart J.) 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 (David Keane J.) for the reasons set out in a written judgment delivered on 27 March 2015: [2015] IEHC 184.

4

The High Court decision was appealed to the Court of Appeal which dismissed the appeal. Judgment was delivered by McKechnie J. (sitting as a judge of the Court of Appeal) on 2 March 2017: [2017] IECA 77 with whom Ryan P. and Hogan J. concurred. The conclusion reached at para 75 was:-

'... I am satisfied, first, that the rule in Battle still survives and that it applies to the presenting circumstances in this case. Secondly, there are no exceptional circumstances which would justify any departure from the rule. ...'

5

Leave to appeal from that decision was granted by the Supreme Court on 6 July 2017: [2017] IESCDET 76. In the determination, a recommendation was made that Mr. Flynn and the Company should seek to avail of the Supreme Court scheme for the provision of legal representation, free of charge before the Court. This is a scheme agreed between the Bar Council and the Law Society with the Supreme Court. Mr. Flynn has availed of that scheme and he and the Company are represented in the appeal by a solicitor and senior and junior counsel who have volunteered to participate in the scheme.

Issues on Appeal
6

At the outset, it is important to emphasise that the Bank does not contend that the decision in Battle should continue to be applied in its absolute terms. Rather, it is 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, 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. It is accepted that such discretionary jurisdiction identified by the High Court (O'Neill J.) in Coffey v. Tara Mines Limited [2008] 1 I.R. 436 (' Coffey') and approved of by the Supreme Court in Stella Coffey exists.

7

Counsel for the Company and Mr. Flynn contends for a broader approach. He submits 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. He 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. Insofar as the Court proposed to continue to apply a test of exceptional circumstances, the submission made was that on the facts of this case, the Company and Mr. Flynn met the test.

8

Both parties refer the Court to the same Irish case law and to judgments from the common law world, many of which are referred to in the judgment of the Court of Appeal. It is proposed to examine the issues by considering first the judgment in Battle and then developments both by way of Irish case law, legislative changes and case law in the common law world since Battle.

Battle
9

Battle concerned an appeal from an order of the President of the High Court refusing an application by Mr. Romas, the managing director of the defendant company, for liberty to conduct the defence of the action on behalf of the company. The plaintiff's claim was for commission alleged to have been earned on the sale of certain of its products. The appeal appears to have been heard ex parte and the appellant appeared in person. The single judgment delivered by Ó Dálaigh C.J. (with whom Haugh J. and Walsh J. concurred) records that the appellant did not refer the Court to any authorities and the Court allowed the matter stand over, so that it might have an opportunity of examining the law. The judgment considers four English authorities, including an extract from the speech of Viscount Simon L.C. in Tritonia Limited v. Equity and Law Assurance Society [1943] 1 A.C. 584 (' Tritonia'), where at p. 586 he stated:-

'In the case of a corporation, inasmuch as the artificial entity cannot attend and argue personally, the right of audience is necessarily limited to counsel instructed on the corporation's behalf.'

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