The managing director of a fish farming company cannot represent his firm in a legal action by AIB against the company over an alleged unpaid debt, the Supreme Court has ruled.
Ms Justice Mary Finlay Geoghegan said the case raised “difficult” issues about the entitlement of a company to be represented in proceedings before the superior courts by a person who is not a lawyer entitled to a right of audience.
Giving the five-judge court’s unanimous judgment, she concluded there is no such entitlement except in “exceptional” circumstances.
There were no such exceptional circumstances in this case involving Aqua Fresh Fish Ltd, she held.
The impecuniosity of a company, lack of available funds to it or the fact the person seeking to represent it is its principal shareholder were not exceptional circumstances.
It was neither desirable nor practicable for the court to define “exceptional circumstances”, she added.
The matter was adjourned to allow Lyndon MacCann SC, for AIB, and Anthony Thuillier BL, for the company, consider the judgment.
Mr MacCann said no order for costs had been made in the company’s failed High Court case over representation, meaning each side pays their own, and the bank would not be seeking costs of the appeal against the company.
The case arose after AIB extended a loan to the company which, it argued, was secured on certain lands.
Following the company’s alleged failure to meet a demand for repayment, the bank sought possession of the lands with a view to selling them.
The High Court refused to permit Adrian Flynn, managing director and principal shareholder of the company, who has no professional legal qualification, to enter an appearance on behalf of the company in the bank’s proceedings.
On appeal in 2013, the Supreme Court ruled he could enter an appearance on behalf of the company but any issue of the company’s further representation in the proceedings was a matter for the High Court.
In 2015, the High Court refused permission to Mr Flynn to represent the company.
In March 2017 the Court of Appeal upheld that refusal but the Supreme Court agreed to hear a further appeal.
A core issue concerned whether the 1969 Supreme Court ‘Battle’ decision concerning the entitlement of a person who has no legal qualifications to represent a company should be more broadly interpreted.
In the Battle decision, the Supreme Court said, in the absence of a statutory exception, a limited company cannot be represented in court proceedings by its managing director or other officer or servant. That finding, referred to as the “Battle rule” was anchored in the legal personality of a company as a separate and distinct entity from its members.
Ms Justice Finlay Geoghegan noted that judges from time to time did hear an individual who appeared on behalf of a company, either as a matter of courtesy or in the interests of justice.
Having examined the relevant law and authorities, she held the “so-called Battle rule”, 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, “continues to be the law here and is consistent with the Constitution”.