Is Legal Representation Required?

Author:Mr Gearóid Carey
Profession:Matheson
 
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Introduction

While it is well established that companies must instruct legal representatives for the purpose of representing the company in proceedings,1 an individual may represent themselves (essentially on a litigant in person/lay litigant basis) if they do not formally instruct a legal representative. A recent case2) has addressed the extent to which a party who has not instructed a practising lawyer may be assisted by another person in the presentation of his or her case. Although the decision is not novel, it is a useful restatement of some general principles regarding legal representation in proceedings before the Irish courts.

Background

The plaintiff applied to the High Court for permission for another individual (Mr O'Donoghue, a former solicitor) to have full rights of representation to represent him in an application by the first named defendant to strike out the proceedings and to vacate a lis pendens registered over property owned by the first named defendant. For the limited purpose of considering the application for a right of audience, Judge Cregan gave liberty to O'Donoghue to address the court on the issue. The plaintiff also made representations.

In response to a specific question from the court, it was confirmed that an unrestricted right of audience was sought. In this regard, it was submitted that the plaintiff had a right to a fair hearing, a right to appoint O'Donoghue to act on his behalf, and in that capacity O'Donoghue had an untrammelled right of audience before the court. Reference was also made to principles of European and human rights law in support of the contentions made. The defendants did not object to O'Donoghue acting as a McKenzie friend3 but did object to him having full rights of audience before the court.

Legal principles

Judge Cregan noted that a Supreme Court decision had set out the appropriate legal principles to be applied and quoted at length from the decision of Judge Fennelly therein. With regard to lay litigants, he acknowledged:

"Such litigants have become an increasingly common feature of litigation in our courts. The reasons are many and various... The courts have recognised the capacity of a McKenzie friend to assist a lay litigant usually by giving advice organising papers. That procedure, however, must of necessity be carefully supervised. Only in the most limited circumstances would the court permit a McKenzie friend to address it."4 In Coffey the Supreme Court acknowledged that...

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