Munster Wireless Ltd v Judge Terence Finn
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 28 June 2018 |
| Neutral Citation | [2018] IEHC 412 |
| Court | High Court |
| Docket Number | [2016 No. 543 J.R.] |
| Date | 28 June 2018 |
[2018] IEHC 412
THE HIGH COURT
Faherty J.
[2016 No. 543 J.R.]
AND
AND
Practice & procedure – Right of audience – Powers of Court to regulate – Company – Right of director to represent company in judicial review application
Facts: The applicant company was party to litigation at District Court level. The applicant had sought leave to apply for judicial review of orders made by the District Court, but a point arose as the right of the director of the company to file documents and conduct proceedings on behalf of the company. The matter now came before the High Court as a preliminary issue.
Faherty J reviewed the Companies Act 2014, the Courts Act 1971 and the applicant's arguments based on EU law in the light of the relevant jurisprudence. Having done so, Faherty J was satisfied that it was clear that a company could not represent itself in court, in the way a natural person could. The director's arguments as to the right to represent the company would be dismissed. Coffey v. the Environmental Protection Agency & Ors. [2014] 2 IR 125 and Battle v Irish Art Promotion Centre Limited [1968] IR 252 applied.
The within proceedings concern an application brought by the applicant company where leave is sought for judicial review by way of orders of certiorari to quash decisions made by the respondent in proceedings at Cashel District Court on 22nd February, 2016.
The grounds upon which leave is sought are said to be the persistent refusal of the respondent to recuse himself from the said proceedings despite what is alleged are several demonstrations of bias, contrary to the right to a fair and impartial hearing. It is alleged that the respondent acted as a judge in his own cause by refusing to recuse himself, by refusing to allow the Digital Audio Recording (DAR) to be active and by refusing to order discovery of relevant information from the first notice party and the Valuation Office, thereby causing the applicant to be at a disadvantage.
The leave application is grounded on the affidavit of William Fitzgerald, a director of the applicant company.
By order of Humphreys J. on 28th November, 2016, it was directed that the State should be put on notice of the proceedings and that before the issue of leave be determined that the preliminary issue of whether it is appropriate that the applicant be represented by one of its directors and not a professional legal representative be tried.
It is common case that the application for leave was signed by Mr. Fitzgerald. Mr. Fitzgerald asserts that he is a director of the company. Accordingly, the question before the Court involves, inter alia, an examination of whether a director, vested with the appropriate authority to bind the company, can file papers in court and initiate proceedings on behalf of the company.
Mr. Fitzgerald submits that there should be no bar to his lodging papers in court on behalf of the company if he is duly authorised to do so and he argues that in this context the position would be analogous to a lay person lodging papers in court. Mr. Fitzgerald invokes s. 41 of the Companies Act 2014 ('the 2014 Act') in aid of his arguments that he has the right to represent the company in court.
Section 41 of the 2014 Act provides:
'41. (1) Notwithstanding anything in its constitution, a company may empower any person, either generally or in respect of any specified matters, as its attorney, to execute deeds or do any other matter on its behalf in any place whether inside or outside the State.
(2) A deed signed by such attorney on behalf of the company shall bind the company and have the same effect as if it were under its common seal.'
Counsel for the State (the second and third notices parties) submits that s. 41 of the 2014 Act has no bearing on the right of the Court to regulate who appears before it. I accept this proposition. The import of s. 41 is simply to permit a person to stand in the shoes of the company and to act as the company. To my mind, the power of attorney referred to in s.41 does not divest the company, or the attorney acting in its place, of the company's incorporated status. Even if Mr. Fitzgerald had power of attorney (of which there is no evidence), that does not transform Mr. Fitzgerald's position into something analogous to a natural person who wishes to conduct his or her litigation in person. Thus, Mr. Fitzgerald's reliance on s. 41 cannot be dispositive of his entitlement to file pleadings on behalf of the company or to represent it in court.
On the issue of Mr. Fitzgerald having signed the statement of grounds, counsel for the State advances the following argument: The authority of an agent to bind a company may be set out expressly in the constitution of the company, in the resolutions of the members of the company or in the resolution of the Board of Directors ('the Board'). However, a director has no inherent powers; and a director has no power to act individually as agent of the company without express authority conferred by the constitution of the company. It is submitted that even where the constitution of a company does contain such an express power, the appointment of a directorship can be revoked by the Board at any time.
Section 38 of the 2014 Act provides:
'38. (1) Subject to subsection (2), notwithstanding anything contained in its constitution a company shall have, whether acting inside or outside of the State—
(a) full and unlimited capacity to carry on and undertake any business or activity, do any act or enter into any transaction; and
(b) for the purposes of paragraph (a), full rights, powers and privileges.
(2) Nothing in subsection (1) shall relieve a company from any duty or obligation under any enactment or the general law.'
Counsel submits that the power to bind the company generally is analogous to the power to submit the company to the jurisdiction of the court. It is accepted that, as a matter of company law, there is no reason why a director could not be delegated to file proceedings in court on behalf of the company and submit the company to the Court's jurisdiction.
However, it is argued by the State that, as a matter of public policy, it is questionable whether the Central Office should accept documents signed by a director. It is argued that a director is an officer of the company. He or she is not a litigant in person. If a director is to represent a company by signing papers to be lodged in court, it is submitted that the Central Office would be required to conduct an investigation to determine whether the director has been vested with the appropriate authority to bind the company. At a minimum, it is suggested that when the court documents are lodged in the Central Office, a director who has signed such documents would also have to submit an up-to-date copy of the company's constitution and, if the express power to bind the company was not included in the company's constitution, a copy of the resolution of either the board of directors or the members of the company delegating the necessary authority to the director to submit the company to the Court's jurisdiction. It is also submitted that there are public policy reasons in terms of economy of resources and effective administration of justice which suggests that proceedings filed by a company director on behalf of the company should not be accepted.
The State also maintains that the acceptance by the Central Office of documents signed by a company director in such circumstances would not correct any jurisdictional defect. It is submitted that where a natural person or other legal entity is represented by a solicitor as an attorney, the solicitor has the capacity to act on behalf of the person or entity. Moreover, the solicitor is an officer of the court. A solicitor has an overarching duty to the court to ensure the effective administration of justice. It is argued that a director is an officer of the company and thus the ultimate allegiance of a director and a solicitor are markedly different.
Mr. Fitzgerald submits that for the purposes of lodging the requisite papers in court a notarised resolution by the board of directors would be sufficient to prove that a director had authority the bind the company.
In general, it is a requirement that pleadings lodged in the Central Office are either signed by the litigant in person or by the counsel or solicitor acting on the litigant's behalf. (O. 19, r. 3 of the Rules of the Superior Court ('RSC')).
Order 84, RSC however does not require that an ex parte application for leave to apply for judicial review or the statement of grounds be accompanied by a signature.
It seems to me that if the papers lodged with the Court in this case complied, on their face (as they appear to) with the requirements of Order 84, then there was no basis for the Central Office not to accept the papers. The State has not said that the papers as lodged do not comply with Order 84. This is not to say, of course, that in the course of the case, a party opposing the application for judicial review may seek proof that the leave application was initiated with the authority of the company.
However, the issue as to whether Mr. Fitzgerald should have a right of audience to represent the company in the leave application is a matter which Humphreys J. raised the issue of Mr. Fitzgerald's entitlement to represent the company in the leave application and directed that that issue be tried before the leave application would be proceeded with. . This, to my mind, is the salient issue to be determined by this Court.
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Munster Wireless Ltd v A Judge of the District Court
...( [2019] IECA 286) in which that court refused to extend time to appeal against the decision of the High Court (Faherty J.) ( [2018] IEHC 412), which refused Mr. Fitzgerald's contention that he should be permitted to represent the applicant, a limited company, in judicial review proceedings......