The Court of Appeal has refused Munster Wireless Limited’s application for more time to appeal a High Court ruling on whether its director could represent it in proposed judicial review proceedings. The court found that no arguable ground of appeal had been identified.
The application concerned a preliminary issue decided by the High Court in June 2018: whether William Fitzgerald, a director of Munster Wireless, could represent the company without a professional legal representative. The High Court ruled that he could not. The order was perfected in August 2018.
Fitzgerald sought leave from the Supreme Court to appeal directly from the High Court, but that application was refused in May 2019. He then applied to the Court of Appeal for an extension of time to appeal. He said he had intended to appeal within the time limit and would have lodged a notice of appeal with the Court of Appeal had he known it was required before seeking a leapfrog appeal.
The State did not appear to dispute that the company had formed a bona fide intention to appeal or that a mistake had caused the deadline to be missed. The central question was whether the proposed appeal had an arguable ground.
Fitzgerald argued that section 41 of the Companies Act 2014, which allows a company to empower an attorney to act on its behalf, entitled him to represent the company in court. The Court of Appeal held that the provision did not remove the company’s separate legal status or create an exception to the rule that companies generally must appear through a qualified lawyer. The court said this proposed ground was “simply unstateable”.
The court also rejected proposed arguments based on Article 54 of the Treaty on the Functioning of the European Union, the EU Charter and the European Convention on Human Rights. It said Article 54 was not a general rule requiring companies to be treated as natural persons for all purposes. It found the European human rights case relied on by Fitzgerald distinguishable because that case concerned a person’s own interest in joining proceedings, rather than who could represent a company already involved in litigation.
The court clarified that Fitzgerald was entitled to appear to advance his argument about representation; allowing him to make that argument did not amount to accepting that he could represent the company in the underlying proceedings.
The Court of Appeal refused the extension of time. It did not decide the proposed judicial review application on its merits.