The Supreme Court dismissed Aqua Fresh Fish Limited’s appeal against a ruling that refused its managing director permission to represent it in proceedings brought by Allied Irish Bank plc to enforce security over land.
The judgment, delivered by Ms Justice Finlay Geoghegan on 18 October 2018, concerned the company’s request for Mr Adrian Flynn, its managing director and principal shareholder, to represent it. Mr Flynn had no professional legal qualification. The Bank alleged that the company had defaulted on a loan and sought, among other relief, possession and sale of the land said to secure it.
The High Court refused Mr Flynn permission after a hearing on notice to the Bank. The Court of Appeal dismissed the company’s appeal, finding that the rule in *Battle v Irish Art Promotion Centre Limited* remained applicable and that there were no exceptional circumstances to justify departing from it. The Supreme Court granted leave to appeal. Mr Flynn and the company were represented in the Supreme Court by lawyers participating in a free legal representation scheme.
The Supreme Court held that the general rule remains that a company must be represented in the Superior Courts by a solicitor or barrister with a right of audience. The court also has an inherent discretion to allow lay representation in exceptional circumstances, where necessary in the interests of justice. That rule, together with the discretion to make exceptions, was consistent with the Constitution, the judgment said.
The court declined to provide a general checklist for exceptional circumstances, saying the relevant considerations depend on the type of claim, proceedings and representation sought. Lack of funds, an asserted arguable defence, the company’s business, and the fact that the proposed representative is a director or principal shareholder would not, individually or in this case in combination, amount to exceptional circumstances.
The court noted that Mr Flynn had not applied to be joined as a party, including on the basis that he was a guarantor of the company’s debt. It said a representative’s status as a party or a possible party could be relevant in another case, but did not decide that such an approach would apply in all cases. The court’s order was to dismiss the appeal; it did not determine the Bank’s underlying claim for possession or sale.