Munster Wireless Ltd v A Judge of The District Court
| Jurisdiction | Ireland |
| Judge | Ms. Justice Máire Whelan |
| Judgment Date | 14 September 2019 |
| Neutral Citation | [2019] IECA 286 |
| Docket Number | Record Number: 2019/328 |
| Court | Court of Appeal (Ireland) |
| Date | 14 September 2019 |
[2019] IECA 286
THE COURT OF APPEAL
Whelan J.
Costello J.
Murray J.
Record Number: 2019/328
AND
AND
Extension of time – Preliminary issue – Judicial review – Appellant seeking an order extending time to appeal – Whether an arguable ground of appeal had been identified
Facts: The applicant, Munster Wireless Ltd, applied to the Court of Appeal for an extension of time to appeal the order of Faherty J made 26th July, 2018 (perfected 14th August, 2018) of a preliminary issue directed to be tried prior to the hearing of an application for leave to apply for judicial review. The issue for determination was whether, contrary to the well-established rule in Battle v Irish Art Promotion Centre Ltd [1968] IR 252, it was legally permissible for the company Munster Wireless Ltd to be represented by Mr Fitzgerald, one of its directors, rather than a professional legal representative.
Held by Whelan J that no arguable ground of appeal had been identified such as would satisfy the third limb of the test in Éire Continental Trading v Clonmel Foods Ltd [1955] IR 170 and warrant making an order extending time to appeal.
Whelan J held that the application would be refused.
Application refused.
This is an application for an extension of time to appeal the order of Ms. Justice Faherty made 26th July, 2018 (perfected 14th August, 2018) of a preliminary issue directed to be tried prior to the hearing of an application for leave to apply for judicial review. The issue for determination was whether, contrary to the well-established rule in Battle, it was legally permissible for the company Munster Wireless Limited to be represented by William Fitzgerald, one of its directors, rather than a professional legal representative.
Mr. Fitzgerald appeared on behalf on the applicant company throughout.
In a judgment delivered on 28th June, 2018 (further considered below) Faherty J. held that Mr. Fitzgerald was not entitled to represent the company in the application for leave to apply for judicial review. She further held that no issue of European law arose in the proceedings.
Mr. Fitzgerald applied to the Supreme Court for leave to pursue a leapfrog appeal from the judgment of Faherty J. The application for a leapfrog appeal was refused in a determination of the Supreme Court made on the 16th May, 2019.
Subsequently, Mr. Fitzgerald attended at the Court of Appeal office where he was advised that he ought to have lodged a notice of appeal prior to seeking leave to leapfrog appeal to the Supreme Court and was by then out of time to lodge an appeal.
He contends that the substantive legal issues in the intended appeal have not been dealt with and he seeks an extension of time to appeal the decision of Faherty J. of the 28th June, 2018. He deposes that had he known of the requirement to lodge a notice of appeal with the Court of Appeal he would have done so.
The only respondent to this application is the State, with the District Court judge and Tipperary County Council taking no part in the matter.
The principles governing an application to extend time to appeal are set forth in the decision of Lavery J. in Éire Continental Trading v. Clonmel Foods Limited [1955] I.R. 170. In his judgment Lavery J. identified the factors to which a court should give consideration on such an application: -
(1) whether the applicant has demonstrated that he has formed a bona fide intention to appeal the order in question within the time prescribed by the Rules of the Superior Courts;
(2) whether the applicant can identify some mistake which caused him to miss the time limit specified for lodging an appeal; and,
(3) whether the applicant has demonstrated that an arguable ground of appeal exists.
Each of the three factors are, as Lavery J. stated, proper matters for the consideration of the Court but are not binding pre-requisites. The over-arching obligation of the Court is to have regard to all of the circumstances of the case and to avoid visiting an injustice on either party to the litigation. The principles do not have the status of legislation. However, it is clear from decisions such as Murphy J. in O'Sullivan v. O'Halloran [2002] I.E.S.C. 32 that compliance with the third part of the test is of the utmost importance and unless the Court is satisfied that a proposed appellant has arguable grounds of appeal a court cannot appropriately make an order extending time.
Regarding the first and second parts of the test it is noteworthy that the respondent does not appear to take issue that same can be treated as satisfied. In an affidavit of Kevin Condon sworn 25th July, 2019 he states: -
“I say and am advised that while the Applicant may have formed a bona fide intention to appeal the determination within the permitted time and was mistaken as to the necessity to lodge papers in the Court of Appeal in advance of bringing an application for leave to appeal to the Supreme Court … that the Applicant has failed to put forward any arguable ground of appeal.”
I am satisfied that compliance with the first and second ground can reasonably be inferred in circumstances where Mr. Fitzgerald lodged his application for a leapfrog appeal with the Supreme Court in time and deposed that had he known of the requirement to lodge a notice of appeal with the Court of Appeal he would have done so. Therefore, the central issue is whether the applicant has demonstrated any bona fide grounds of appeal.
In November 2016 Mr. Fitzgerald, a director of the company Munster Wireless Limited, signed an application for leave to seek judicial review. The preliminary issue before the High Court was whether a director whom the company purports to vest with appropriate authority pursuant to statute to bind the company is thereby entitled to file papers in court and initiate and conduct proceedings on behalf of the company.
Mr. Fitzgerald contended that section 41 of the Companies Act, 2014 conferred such an entitlement on him to represent the company in litigation.
Section 41 provides: -
“(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.”
The respondent contended that the import of section 41 was merely to permit a person to stand in the shoes of the company and to act on behalf of the company in limited circumstances such as in the execution of documents but it had no bearing on the right of the courts to regulate who appears before it.
In her judgment Faherty J. observed: -
“To my mind the power of attorney referred to in s. 41 of the 2014 Act 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.”
Faherty J. noted that the right of audience of a shareholder or a director of a company to appear on behalf of the company in court was considered in Battle v. Irish Art Promotion Centre Limited [1968] I.R. 252 where the managing director of a company brought an ex parte motion seeking liberty to conduct the defence to the plaintiff's action on behalf of the company. Ó Dálaigh C.J. in the Supreme Court, noting the earlier English decision of Tritonia Limited v. Equity and Law Life Assurance Society [1943] A.C. 584, observed: -
“In the absence of statutory exception, a limited company cannot be represented in court proceedings by its managing director or other officer or servant. This is an infirmity of the company which derives from its own very nature. The creation of the company is the act of its subscribers; the subscribers, in discarding their own personae for the persona of the company, doubtless did so for the advantages which incorporation offers to traders. In seeking incorporation they thereby lose the right of audience which they would have as individuals; but the choice has been theirs.”
The rule in Battle was subsequently endorsed by the Supreme Court in Coffey v. Tara Mines Limited [2008] 1 I.R. 436.
Mr. Fitzgerald contended that the rule in Battle contravened Article 54 of the Treaty on the functioning of the European Union (TFEU).
Article 54 states: -
“Companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Union shall, for the purposes of this Chapter, be treated in the same way as natural persons who are nationals of Member States.”
He argued that since it is not a requirement for a natural person to be represented by a qualified legal professional in court and a natural person is entitled to represent himself, it must follow that a company is also not required to be represented by a legal professional. Faherty J. at para. 37 of her judgment found that Article 54, when considered in its context, had no bearing on the law in this jurisdiction which requires a company to be represented by a lawyer: -
“Article 54 relates solely to the...
To continue reading
Request your trial
-
Donlon v Burns
...plc v. Aqua Fresh Fish Ltd. [2018] IESC 49 as followed by this court in Munster Wireless Ltd. v. A Judge of the District Court & Ors, [2019] IECA 286 make clear that, save in exceptional circumstances not established in this case, in the words of Finlay Geoghegan J. in Aqua Fresh Fish at pa......
-
Judgment in Microsoft Ireland Operations Ltd v Thabit
...this court as indeed as has subsequently been acknowledged in decisions such as Minister Wireless Ltd. v. A Judge of the. District Court [2019] IECA 286. Mootness 36 The Supreme Court in Lofinmakin v. Minister for Justice, Equality and Law Reform [2013] IESC 49, [2013] 4 I.R. 274 at para. 8......
-
Munster Wireless Ltd v A Judge of the District Court
...Limited, seeks leave to appeal to this court from the decision of the Court of Appeal (Whelan J; Costello and Murray D. concurring) ( [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 M......