The Supreme Court refused to let Percy Podger represent 13 appellants in appeals concerning costs orders sought ahead of intended challenges to an environmental decision. The court said the appellants could present their own cases, but none chose to do so when given the opportunity.
The decision, made at a hearing on 11 December 2012, was explained in a judgment delivered by Mr Justice Fennelly on 26 February 2013. The court had first allowed Mr Podger to argue only whether he should be permitted to represent the appellants. After it refused, the appellants were given time to consider presenting their appeals themselves. None wished to proceed in that way.
Mr Podger then said he had become a member of appellant company No2GM Ltd during the adjournment and proposed to represent it. The court refused that application too. Fennelly said the change was a device to defeat the court’s ruling and did not establish an exceptional circumstance.
The 13 appeals arose from High Court refusals to make what the appellants called “Not-Prohibitively Expensive Costs Orders” for intended judicial review proceedings. The judgment said the appellants appeared to want to challenge an EPA consent, granted on 25 July 2012, allowing Teagasc to deliberately release certain genetically modified potato lines at Oak Park, County Carlow, subject to conditions. None had yet applied to the High Court for leave to seek judicial review.
The Supreme Court did not decide the merits of the underlying appeals or whether the High Court was right to refuse the costs orders. Those appeals remained pending. The judgment records that the High Court refusals rested on the fair-procedures concern that a final costs order affecting other parties should not be made without giving them an opportunity to be heard; it did not resolve the broader question of jurisdiction to make such an order.
Fennelly said the general rule was that a litigant may appear personally, while a solicitor or counsel may represent a party when properly instructed. A McKenzie friend may assist a person representing themselves, but has no right to address the court unless invited by the judge. Mr Podger sought unrestricted audience as an advocate, rather than that limited assisting role.
The court concluded that neither the appellants’ access-to-justice arguments nor the proposed company membership justified an exception to the representation rules. The ruling addressed representation at the appeals hearing; it did not dispose of the appeals themselves.